' ABDUL AZIZ KUNDI J.--- Mukhtar Ahmad, appellant an employee of Habib Bank Limited respondent, since 4-5-1981 through the instant Labour Appeal. Under section 54(3) , Industrial Relations Act, 2008 has questioned the judgment and order dated 21-2-2009, passed by Presiding Officer, Labour court, Peshawar, dismissing his Grievance Petition, bearing No,44/1 of 2007, upholding the action of the respondent ordering his compulsory retirement from service, on the ground of misconduct.
2. Mukhtar Ahmad, appellant, while posted as Branch Manager, Utmanzai Branch of Habib Bank Limited was served with explanation, dated 4-6-2007 (Exh.P.W.1/1), calling upon him to explain as to why disciplinary action be not taken against him for his loose control on the internal affairs of the Branch, which was replied to by him, vide his reply dated, 8-6-2007 (Exh.P.W.1/2) and management having not found the same satisfactory, served him with a show-cause notice dated 6-7-2007 (Exh.P.W.1/3) to show cause as to why disciplinary action should not be taken against him on account of the following:---
(1) Loose administration.
(2) Negligence, and
(3) Concealment of facts.
3. The show-cause notice was replied by the appellant on 16-7-2007 (Exh.P.W.1/4), but, the same also not being satisfactory, the management of the respondent-bank, vide order, dated 31-7-2007 (Exh.P.W.1/5), decided. To hold an inquiry into the matter, and one Mr. Makhtar Dar, A.V.P./Member Independent Dedicated Inquiry. Unit, REQ., Jehlam was appointed Inquiry Officer, who proceeded to hold an inquiry and after doing so, submitted his report dated, 27-8-2007 (Exh.P.W.1/6), holding the appellant to be guilty of the charges levelled against him and reproduced above. Appellant was accordingly issued second show-cause notice dated 6-9-2007 (Exh.P.W.1/7) which was also replied by him vide reply, dated 13-9-2007 (Exh.P.W.1/8) and then vide order dated 6-11-2007 (Exh.P.W.1/9), he was compulsorily retired from service of the bank as a punishment with usual retirement benefits.
' Appellant's Grievance Notice dated 25-1-2007 (Exh..P.W.1/10) having not been responded, he ultimately on 17-12-2007, approached Labour Court, Peshawar, through his petition under section 46 of the Industrial Relations Ordinance, 2002.
4. On receipt of reply from the respondents, the Presiding Officer of the Labour Court, Peshawar proceeded to record evidence in the case. Appellant Mukhtar Ahmad recorded his solitary statement as P.W.1 and corroborated his petition besides producing the record referred to above and some other comprising of pay slip, etc: etc. ' As against that, the respondent-Bank examined Mahmood Akhtar Dar, Inquiry Officer as R.W.1 and produced copy of inquiry report and inquiry proceedings, duly exhibited in the cross-examination of the appellant. Besides statement of one Javed Ahmad, Assistant Manager of the respondent- bank was also recorded as R.W.2.
5. Presiding Officer of the Labour Court, Peshawar, then proceeded to decide the Grievance Petition of the appellant and after threadbare appraisal of the evidence and considering the relevant law, he concluded that appellant was rightly found to be guilty of the charge levelled against him and that under Rule 37 of Habib Bank Limited Staff Service Rules, being negligent, inefficient or indolent amount to misconduct and that the competent authority was authorized to impose such an employee with one or more of the penalties, mentioned therein including penalty of his compulsory retirement and after having held, so proceeded to dismiss the petition of the appellants.
' Arguments heard. Record perused.
6. The charge of having loose administrative control negligence etc. Was proved against the appellant in an inquiry, which was found perfectly correct and nothing wrong it, though learned counsel for the appellant in his arguments seriously criticized the said inquiry. Learned counsel's other contention about improvement in the charge against the appellant as against one made in the first explanation letter, is also without substance, because after having received the reply to the explanation, a proper show-cause notice (Exh.P.W.1/3) was served upon the appellant. The learned counsel's next contention that evidence was recorded in question and answer form, is also without substance, as record would show that statements of the parties were recorded in accordance with law. However, in the cross-examination, both questions and answers have been brought on record to ward off any doubt about his fairness and ensure transparency. Not only this, but the appellant was also provided a fair chance to produce his further evidence, who did not opt to do so and certain admissions in his cross-examination duly reproduced in the impugned judgment of the Labour Court would show that appellant in fact admitted the charge against him. The findings so recorded by the Labour Court are thus not open to any exception and are accordingly maintained.
' The quantum of sentence awarded, however requires reconsideration.
7. Admittedly, appellant was in the employment of the bank since 4-5-1981 and nothing has been brought on file to show that except for this charge, he was ever even censured for any act of his omission and commission during his entire career. The Presiding Officer of the Labour Court has while maintaining the sentence of the appellant, placed reliance on Rule 37 of Habib Bank Limited Staff Service Rules, 1981 which provide the following punishment:- "(a) reprimand;
(b) postponement or stoppage of increment or promotion;
(c) forfeiture of pay for any period of unauthorized ,absence from duty;
(d) recovery from pay of the whole or part of any pecuniary loss caused to the Bank by the employee;
(e) degradation to a lower stage of pay in his grade or to a lower grade;
(f) compulsory retirement from service;
(g) removal from service which does not disqualify for further employment or calls upon an employee to resign from service; and
(h) dismissal which will involve permanent disqualification for future employment in the Bank."
8. Similarly, sub-clause-2 of Standing Order 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (Ordinance No, VI of 1968), provide following punishments for commission of 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.
' Under sub-clause (i) of clause 3 of Standing Order 15, a habitual negligence or neglect of work has been termed to be misconduct
9. No doubt under the Habib Bank Limited Staff Service Rules, 1981, compulsory retirement from service is one of the punishment provided for misconduct, but compulsory retirement is not provided as a punishment under Standing Orders Ordinance ibid. 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 facts 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 and 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 Bank Limited v. Musaddiq Hussain and 2 others have settled the law in this respect.
10. In the case of Auditor General of Pakistan and others v. Muhammad Ali and others 2006 SCM R 60 at page 63, though relating to a civil servant, honourable apex Court while dealing with award of punishment for misconduct proceeded to lay down the law 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 preventative measure for reformation of the society, whereas the concept of minor punishment in the law is to make an attempt to reform the individual wrongdoer. 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."
11. This Tribunal had while following the law so settled, vide its judgment dated 16-4-2010 passed in Labour Appeals Nos.8 and 11 of 2006 proceeded to convert the punishment of dismissal from service into one of with-holding of increment for a period of one year as provided in sub-clause (ii) of clause (2) of S.0.15 (ibid). Punishment to be awarded is to be commensurate with the charge and not more than that.
12. In the instant case, as held above, compulsory retirement as punishment is though provided under the Habib Bank Limited Staff Service Rules, 1981, but there are other punishments as well provided both in the said Rules and the Standing Orders Ordinance (ibid). The punishment awarded to the appellant, who had a long association with the employer bank for more than 26 years to me appears to be harsh, because he had still sufficient time to serve the bank, but was packed much before the said period in the instant case. To me awarding of punishment of reduction to a lower grade by one step would adequately meet the ends of justice in view of the charge of which the appellant has been proved guilty.
13. Thus, while partially allowing this appeal, his punishment for compulsory retirement is converted into reduction into a lower grade by one step and since he has been found guilty of the charge, therefore, is not entitled to the wages for the period during which he stood compulsorily retired and the said period shall be treated as leave without pay. Parties to bear their own costs.
' Appeal partially allowed.