ROZI KHAN BARRECH, J.---- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed against the judgment dated 09.03.2012 passed by learned Member Labour Appellate Tribunal Balochistan, Quetta, in Labour Appeal No.26 of 2011 whereby the appeal filed by the respondent No.1 against the judgment dated 15.07.201 1 passed by learned District and Sessions Judge/First Labour Court Balochistan, Quetta, was modified termination order dated 21.06.2007 of the respondent No.1 as to compulsory retirement.
2. Facts of the case are that the appellant/respondent No.1 was serving at petitioner's bank as a Cashier . On 24.08.2006 he was transferred to Sohbat Pur from Quetta branch, but according to respondent No.1 he was unable to carry out his journey to Sohbat Pur due to his illness and other domestic problems and this situation was beyond his control. On. 21.06.2007 he was terminated from service after conducted inquiry . The respondent No.1 submitted departmental appeal on 30.07.2008 and the same was not disposed of inspite direction of the. learned Labour Court by means of order dated 13.10.2009 but the said order was not complied and on the application the petitioner's bank was awarded rupees ten thousand whereof appeal dated 30.07.2008 was rejected on 02.1 1.2010.
3. The grievance application preferred by the respondent No.1 which was dismissed by means of judgment dated 15.07.201 1 passed by learned District and Sessions Judge/First Labour Court Balochistan, Quetta.
4. Being aggrieved from the judgment dated 15.07.201 1 passed by learned District and Sessions Judge/First Labour Court Balochistan, Quetta, the respondent No.1 filed appeal under section 54(2) of BIRA, 2010 and the same was dismissed on vide judgment dated 09.03.2012 with the modification that "the termination order dated 21.06.2007 is modified to compulsory retirement".
5. Being aggrieved from the judgment dated 09.03.2012 (modification order) i.e. from termination to compulsory retirement the petitioner's bank filed the instant constitution petition.
6. We have heard the learned counsel for the parties and have gone through the available record with their assistance. It may be observed that the respondent No.1 was terminated from service by the petitioner's bank on 21.06.2007 on the charge of absence from duty. The District and Sessions Judge/First Labour Court Balochistan, Quetta, dismissed the grievance application under section 41 of Industrial Relatio ns Act, 2010 of the respondent No.1 Appeal filed by the respondent No.1 was partly allowed to the extent of modification of the termination order from that of compulsory retirement. The respondent No.1 did not challenge the order of the appellate tribunal, however , the petitioner's bank impugned order of the appellate Court.
Since the matter of the respondent No. 1 's continuous absence from duty has been set at knot, initially by the Bank Authorities and later in appeal by the Labour Appellate Tribunal, duly accepted by both the parties thus the said issue is not at debate and the sole question in this case requiring concentration is; whether the modification in quantum of penalty made by the Labour Appellate Tribunal commensurate with the undisciplined act of respondent.
"Termination from service " and "Compulsory retirement from service " both are lower and higher level of major penalties, recorded in view of the given circumstances of each case. Record shows that in the instant case, although the respondent's undisciplined act of continuous absence from duty stood proved, but the element of the respondent being habitual in absenting himself from duty is lacking. Thus, being not a case of habitual absence, the penalty of termination from service obviously appears harsh, as it amounted to expelling and bringing penniless on road an employee, without recognition of his long length of service i.e. 19 years, entitling him to have beneficiary emoluments of such past service, admitt edly performed within the ambit of laid down service policy of the bank, when matter only pertains to continuous absence from duty , which too for a period not very long.
During service of the respondent No.1 at Quetta branch no complaint as regard his conduct during his service there. Reliance is placed in the case titled Muslim Commercial Bank Ltd v. Ghulam Muhammad Memon 2008 PLC 40 , it was held as under:- "It is cardinal principle of penal law, to inflict penalty of 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.O. 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 SCMR 2028 ; Farooq Ahmed Khan Leghari v. Federation PLD 1999 SC 192 and Muhammad Ilyas v. Muhammad Sufian PLD 2001 SC 465 and 474".
In view of the above circumstances, we concur with the decision of the Labour Appellate Tribunal, who after well attending the fact and circumstances of the case has rightly modified the termination order dated 21.06.2007 of the respondent No.1 as compulsory retirement.
For what has been observed above, we see no force in instant petition, which is dismissed accordingly .