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Petitioner: MUSLIM COMMERCIAL BANK LTD., BAHAWALPUR VS Respondent: MAZHAR ABBAS GARDEZI
1988 P L C 560
1988 P L C 560
[Labour Appellate Tribunal Punjab]
Present: Sardar Muhammad Abdul Ghafoor Khan Lodhi, Appellate Tribunal
MUSLIM COMMERCIAL BANK LTD., BAHAWALPUR
Versus
MAZHAR ABBAS GARDEZI
Appeal No. BR‑85 of 1985, decided on 26th May, 1986
(a) Industrial Relations Ordinance (XXIII of 1969)‑‑
‑‑‑Ss. 25‑A & 38 (3)‑‑Scope of 5.25‑A‑‑Powers of Labour Court with regard to quantum or kind of punishment‑‑Prescribing punishment, held, was prerogative of employer‑‑Misconduct if found to have been established Labour Court, held, would have no jurisdiction to interfere with punishment order‑‑Grievance petition against dismissal for misconduct wherein Labour Court not recording any findings with regard tb alleged misconduct but setting aside impugned dismissal order on ground that allegations though amounting to misconduct were not so serious as to attract maximum penalty of dismissal from service‑‑Objection in appeal that Labour Court has no jurisdiction to set aside punishment only on ground that it was harsh was accepted and order of Labour Court set aside by Appellate Tribunal.'
(b) Industrial Relations Ordinance (XXIII of 1969)‑‑
‑‑‑Ss.37 & 38(3)‑‑Appeal against decision of Labour Court‑‑No cross objections filed by respondent‑‑Respondent in circumstances, held, could only support but could not challenge impugned order.
Irshad Ali Mian for the Appellant.
Maqbool Anees for Respondent.
Date of hearing: 18th May, 1986.
JUDGMENT
The decision dated 22‑1‑1985 recorded by the learned Presiding Officer, Punjab Labour Court No.8, Bahawalpur has been challenged in the appeal captioned above, whereby the respondent has been directed to be reinstated in service.
2. The allegations against the respondent as given in Charge‑sheet Ex.P‑1 were that he removed 18 pages of attendance register, that he was a habitual absentee and that in spite of remaining absent he marked himself present in the attendance register. The learned lower Court has not recorded any finding on the point whether the respondent had marked himself present in the attendance register on the dates on which he was actually absent. The conviction recorded by the employer on the other two charges has not been set aside by the learned' lower Court but it has opined that the allegations were not so serious as to attract the maximum penalty of dismissal from service. It has been argued on behalf of the appellant that the Courts have no jurisdiction to set aside the punishment only on the ground that it is harsh and on the other hand the learned counsel for the respondent has argued that the Court has such a jurisdiction. I have recorded my opinion nearly in all such cases in which such a question arose that where misconduct has been found to have been established, the Courts have no jurisdiction to interfere with the quantum or kind of punishment, awarded by the employer. It is the prerogative of the employer to prescribe punishment. Learned counsel for the respondent has also argued that since no opinion has been expressed by the learned lower Court on the third charge, possibility cannot be excluded that if the learned lower Court had found that the said charge was not established, the order of dismissal would not have been maintainable. Since no cross objections have been filed, so B the respondent can only support the order of the learned lower Court but cannot challenge it.
3.Lahore High Court has held in 1985 P L C 1053 that bank employees who have been removed from service cease to remain workman as the term stands defined in clause (xxviii) of section 2 of the Industrial Relations Ordinance, 1969 and the Award of the Wage Commission not being an award as defined in the Industrial Relations Ordinance, 1969, the learned Labour Courts have no jurisdiction. No doubt, the question is sub judice before the Supreme Court but unless the ruling cited above is set aside by the Supreme Court it remains in the field and as the orders passed by the Labour Courts and this Tribunal are subject to writ jurisdiction of Lahore High Court, the dictums laid down by the said Court are to be followed,
4. As a result of the observations made above, I accept the appeal on the point of jurisdiction as well as on merits ‑and setting aside the impugned decision of the learned lower Court, the grievance petition is directed to be returned to the respondent for presentation to the proper forum.
A.E. /115/Lb.P???????????????????????????????????????????????????????????? Appeal accepted.