' ABDUL SHAKURUL SALAM, J.---This appeal by leave arises in the following circumstances.
1. Respondent No,1 was employed as an Assistant in Fort Abbas Branch of the appellant Bank. He was charge-sheeted on the following seven counts:-
(1) On 14-4-1980 you have received Rs,2,667 from M/s. Gulistan Radio Service, Fort Abbas being the proceeds of IBC No, 100, actually the amount of IDC No,100 was Rs,2,617. As such you have received Rs,50 excess from the party. Neither Rs, 50 were returned to the party not credited to the Bank account. You have erased the amount in the register/pocketed the amount. On your enquiry, you have not only admitted your fault in the presence of the staff on 30-6-1980 but you also deposited the excess amount of Rs, 50 in the bank.
(2) On 14-4-1980 you had also received an amount of Huj deposit of Rs,12,350 but in the cash receipt register you have entered Rs, 12,320 after erasing the figure and have pocketed Rs, 30.
(3) On 25-5-1980, while counting the cash of valued client, Mr. Haji Shamsh Din, you have informed your Manager that there is shortage of Rs,139 in the cash of Mr. Haji Shamsh Din, which was paid by the depositor,. In this connection, the Manager of the Branch sealed some cash in an envelope and advised you to balance the entire cash immediately. The cash was sealed only to know the actual difference in the cash. But you broke the seal of envelope and mixed the cash before balancing the entire cash. During the balancing of the cash, you told your Manager that the cash of Rs,101 is short.
The mistake was not traced out.
(4) After the counter hours on that day, i,e, 25-5-1980, you misbehaved with your Manager in the presence of other staff. You not only abused your Manager but also seized him by the collar and gave him a blow on the head with the fist in the presence of staff.
(5) You are also habitual of misbehaving with your superiors. You misbehaved with the Manager of our Chak No,102/WB Branch for which a show-cause notice bearing No, MHS.6544, dated 25-11-1979 was issued to you and on your assurance that such thing will not be repeated in further, the matter was closed.
(6) On 1-6-1980, you visited Zonal Office, Vehari at 8.00 a.m. And refused to go to your place of posting at Fort Abbas. As such you are unauthorisedly absent from Duty since then.
(7) You stole the cash receipt and cash paid stamps from the Branch which were recovered from you at Zonal Office, Vehari, on 1-6-1980.
' He denied the charges and filed the following reply:-
(i) He accepted only Rs,2,617 and made entry of this amount in the relevant book. Perhaps the enquiry officer made alterations in the relevant voucher by changing the figure (1) into (6). It was done simply with a view to entangling him in disciplinary action.
(ii) He received Rs,12,320 as Huj Deposit inadvertently entered in the cash register as 12,350. When the second officer checked entry, he pointed out the error. The petitioner immediately rectified it.
He did not receive Rs,30 in excess.
(iii) Haji Shamsh Din tendered cash which was short by Rs,139. The petitioner brought this fact to the notice of the Manager who abused the petitioner. The amount was again counted and it transpired to be deficit by Rs,
139. The petitioner protested at which the Manager became annoyed and turned him out of the bank. He himself, dealt with the cash. After two or three hours he summoned the petitioner and told him, that he had put some money in the envelope which has been closed. At the end of day, he rebalance his account and then the envelope will be opened. The petitioner strictly followed the instructions. In the first instance, there came to be shortage of Rs,5,0(X) but on rechecking, the shortage went down to Rs,101. The envelope was opened in the presence of Manager and the petitioner is not to be blamed for it.
(iv) The Manager abused the petitioner by saying him as Mama. This term is used for abusive language in Punjabi and no gentlemen could tolerate it. The petitioner is not guilty in this respect.
(v) In the matter of Cheque No,102 WP Branch the petitioner was innocent as the matter as dropped.
(vi) The Manager of the Br nch often misbehaved with the petitioner. On different occasions, he misappropriated certain sums of money and put the blame on the titioner. The Manager openly told him that V.P. Had instructed him to involve the petitioner in some case so that he should be handed over to police and his services should be brought to an end. It was for this reason that the petitioner refused to go to work in that Branch.
(vii) After the incident of 25-5-1980 the petitioner kept the cash stamp in the safe. The key of safe was snatched from him by the Manager and it was handed over to second officer. On 31-5-1980 the petitioner came to bank. He found the stamps lying in the drawer of his table, and enquired from the Manager as to how keys had crept into drawer. The Manager informed that it had been done to involve the petitioner in the case of negligence. The petitioner then took the stamps and delivered in zonal office. He was not to be lamented and was not guilty of the charge."
' The enquiry officer found all the charges proved. The appellant-Bank dismissed the respondent on 15-2-1981. He filed in due course a grievance petition under section 25-A, IRO before the Funjab Labour Court which was dismissed on 22-12-1982. He filed an appeal before the Punjab Labour Appellate Tribunal. The latter re-examined the evidence and found that five charges were not proved but only 4 and 6. However, relying on a judgment of the Lahore High Court that if some charges are not proved the whole order deserves setting aside, the appeal was allowed and the respondent reinstated in service. This is vide order dated 22-10-1983. The appellant filed a Constitution petition in the Lahore High Court which was dismissed on 29-3-1988. At the leave stage it was contended that " after the learned Tribunal had found that the charges established against respondent No,1 constituted misconduct, it ought not to have interfered with the order of dismissal merely for the reason that the other five charges had not been established." This is vide order dated 24-2-1990.
2. Learned counsel for the appellant has contended that under section 25-A of the Industrial Relations Ordinance in subsection (5) it is provided that "in adjudicating and determining a grievance under subsection (4), the Labour Court, shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case". Under subsection (3) of section 38 of the aforesaid Ordinance "the Tribunal may, on appeal, confirm, set aside, vary or modify the award or decision given under section 25-A of the Industrial Relations Ordinance and shall exercise all the powers conferred by this Ordinance on the Labour Court". The precise contention of the learned counsel for the appellant is that the learned Appellate Tribunal fell in error in holding that notwithstanding the proof of the two charges against the respondent of misconduct, for non-proof of the other five he could only set it aside, because as an appellate Court it was open to the learned Appelllate Tribunal that on the finding that two charges of misconduct were proved it may have either upheld the order of the dismissal or varied or modified it in any manner it deemed fit in the circumstances of the case.
3. Learned counsel for the respondent has submitted that for the last 11 years the respondent is out of service.
4. After hearing the learned counsel for the parties we are of the view that the learned appellate Tribunal fell in error in construing the judgment quoted before it i,e, "Chan Pir Shah v. Congothene Chemical Industries Ltd. Etc." (1981 PLC 981) inasmuch as this very judgment referred to "Sardar Sher Muhammad v. Rao Bashir Ali Khan and another" (PLD 1962 (W.P) Lahore 172) wherein distinction was drawn between the appellate jurisdiction and Constitutional jurisdiction. In the case in hand, the statutory provisions quoted above make it quite clear that the Appellate Tribunal could vary or modify the order under appeal. It was not bound to either sustain it in totality or set it aside completely. As an appellate authority it was open to the learned appellate Tribunal either to sustain the order or to vary or modify it in accordance with the facts established, whatever it may have deemed fit. The contention of the learned counsel for the respondent that the latter had suffered enough for the charges proved against him is a, matter for the Tribunal to address.
5. In view of what has been stated above the appeal is allowed and the case is remitted to the learned Punjab Appellate Tribunal to determine as to what punishment will meet the ends of justice on the charges proved against the respondent. Parties in the circumstances are left to bear their own costs.
' RUSTAM S. SIDHWA, J.---I have read the judgment of my learned brother Abdul Shakurul Salam, J., with whose final order I agree, but would like to express myself separately with regard to the point in dispute.
2. The basic question calling for determination in this appeal is whether in view of the decision of the Lahore High Court in Chan Pir Shah's case (1981 PLC 981), the Labour Appellate Tribunal could hold that if only two of the seven grounds of misconduct imputed to the respondent were proved, his dismissal could not be ordered.
3. The respondent was charge-sheeted on seven grounds of misconduct. The inquiry officer found all these charges proved and the appellant-Bank dismissed the respondent on 15-2-1981 on the basis that the said charges stood proved. The respondent brought a grievance petition before the Punjab Labour Court, which dismissed the same on 22-12-1982. However, the Punjab Labour Appellate Tribunal found five charges not established, but only two proved, and relying on the judgment of the Lahore High Court in Chan Pir Shah's case (supra), held that the dismissal of the respondent was not maintainable, as the possibility that the inquiry officer could have imposed a lesser penalty could not be excluded, and' ordered his reinstatement without any back benefits.
4. In Chan Pir Shah's case (supra), the said appellant was charge-sheeted for (i) stopping work and going slow, (ii) inciting and instigating his fellow workers in furtherance of the said design and
(iii) for reading a newspaper whilst on duty on a particular date. The learned Single Judge held that the first two charges on the basis of which the appellant had been dismissed did not amount to such acts or omissions as could be treated as "misconduct" and that the allegation levelled in the third charge could perhaps amount to misconduct, but insofar as two out of three charges on the basis of which action had been taken did not amount to "misconduct", the action of dismissal on the assumption that all the three charges stood proved, vitiated the entire order. For this view the learned Single Judge relied upon Sher Muhammad v. Bashir Ali Khan (PLD 1962 Lah 172) and Rehmat Elahi v. Government of West Pakistan (PLD 1965 Lah. 112).
5. The rule laid down in Sher Muhammad's case (supra) relates to the different parameters within which an appellate Court can act, as opposed to the High Court in constitutional jurisdiction, whereas the rule laid down in Rehmat Elahi's case (supra) relates to a detention matter where an order can be struck down if one or more grounds on which it was founded is later found not valid.
Perhaps in a detention case it may be possible to form an opinion that in case one or more of the grounds which are the basis of the opinion for ordering detention are non-existent or not well founded, the whole order can be struck down, as it is not possible to assess how much of the faulty or nonexistent grounds have played in the formation of the 'opinion. However, Mr. Justice Muhammad Munir, the then Chief Justice of the Lahore High Court, in Rafiq Mimed v. Crown (PLD 1951 Lah. 17), while dealing with a habeas corpus petition, did not accept this view and Indian Supreme Court in Suran Singh v. State of Punjab (PLD 1976 SC 236) has also doubted the validity of this view. In Khawaja Muhammad Sharif v. Federation of Pakistan (PLD 1988 Lah. 725), Chief Justice Abdul Shakurul Salam, as he then was, followed the old rule, but the same was not shared by the other Judges and this Court in Haji Saifullah Khan's case (PLD 1989 S.C. 166) also did not support his view.
6. The rule with regard to detention matters cannot be applied to labour cases. Regarding each item of misconduct or lesser infraction, the employer is permitted to impose the necessary punishment as may be applicable to the charge found proved. The principle therefore that if seven charges of misconduct and or/lesser infraction were proved, for which initially the employer had dismissed the employee, but that later if five of the same were not found supportable, the order of dismissal could be struck down as a whole, cannot be accepted. The Labour Courts have a duty to see that the final punishment which has been imposed in respect of such of the charges that ultimately stand proved, can be sustained. Since the Labour Court under section 25-A (5) of the Industrial Relations Ordinance, 1969, has the power to go into all the facts of the case and pass such orders as may be just and proper in the circumstances, it has a duty to see whether the final punishment awarded by the employer can be sustained, for the remaining charges found proved.
If misconduct is made out, it can maintain the dismissal, unless for special reasons it considers one of the lesser sentences should be imposed, in which case it can do so after recording the said reasons. If misconduct is not made out, it need not sustain the dismissal, but can impose what it considers a fair punishment, unless the case does not call for anything more than a warning.
Likewise, the Labour Appellate Tribunal has similar powers under section 38 (3) of the said Ordinance.
7. For the foregoing reasons, I agree with the final order proposed by my learned brother, as stated in para 5 of his judgment.