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Appeals Nos. LHR-389 and Lah. 396of 1985, decided on 23rd December, 1985.

---S. 4--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), 'S.O. 15(3)--Industrial Relations Ordinance (XXIII of 1969), Ss. 25-A, 38(3)--Employee of Newspaper alleged to have signed a Press Statement purportedly against Policy of Newspaper--Services terminated on offer of payment of 3 month's pay under S. 4 of Newspapers Employees (Conditions) of Service Act, 1973- Labour Court setting aside impugned termination order holding that allegation amounted to misconduct as such procedure of enquiry and defence under S.O. 15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 should have been followed--Appellate Tribunal finding that neither alleged statement was proved to have been signed by employees nor alleged statement amounted to misconduct--Re-instatement order of Labour Court, in circumstances, maintained by Appellate Tribunal and employee awarded back benefits subject to adjustment with benefits already received in terms of impugned termination order.

Syed Noor Ahmad for Petitioner.

Khalid Ranjha and Muhammad Ikram for Respondents.

Date of hearing: 18th December, 1985.

The decision dated 4-6-1985 recorded by the learned Presiding Officer. Punjab Labour Court No.2, Lahore has been challenged, whereby Mumtaz Ahmad, Aziz Mazhar and Aurang Zeb (hereinafter referred to as respondents Nos. 1, 2 and 3 respectively) were directed to be re-instated in service without back benefits. Only Mumtaz Ahmad, respondent No.l, has brought appeal claiming back benefits, whereas Mashriq Limited (hereinafter to be described as the appellant) has in its appeal challenged the direction of re-instatement of all the three respondents in service. Since both the appeals arise from the same decision, they are being disposed of together through this single judgment.

2. The allegations on which the respondents were terminated from service are contained in Exh.P-4 report of the Chief Editor. The A respondents are alleged to have signed a Press statement, copy Exh.R-10, which was published in Daily Jang. Services of the respondents were terminated under section 4 of the Newspapers Employees (Conditions of Service) Act, 1973 on the offer and payment of three months' pay. The learned lower Court has held that the allegations made against the respondents amount to misconduct, so procedure given in Standing Order 15 should have been followed. I have carefully gone through the statement alleged to have been signed by the respondents. Whatever is said therein does not attract any clause of Standing Order 15 (3) (a) to (1). No doubt, it is said in the pamphlet that the executives have misused powers which has caused rift between the public and attributing taking of coercive measures, maltreatment and infliction of inhuman punishment to the political prisoners, have condemned the same, but they did it in their personal capacity and not in the discharge of their duties. This is noteworthy that the pamphlet was not published in Mashriq. Even this is wrong that it was published in Jang. Exh.R-18 is not a publication of pamphlet itself but only this much is mentioned that news-papers employees and literary men have signed a joint statement. The statement has not been published. If the Government had thought of taking action, it may have proceeded against the executants of the statement and not the appellants. Of course, if the statement Exh.R-10 had been published in Mushriq at the instance of the respondents, there could have been some scope to say that they committed misconduct. For the same reasons the appellant could not take action against the respondents for an act done in their private capacity. The respondents did not attribute what are alleged to have said in Exh.R-10, to the appellant. There is nothing in Exh.R-10 to show that it was issued on behalf of "Mushriq". Simply because the respondents were employees of Mushriq was not sufficient to malign the said paper. It was their private act and they could have been privately responsible for it. The Chief Editor and the authorities who terminated the services of the respondent displayed over sensitiveness. They had the least ground to apprehend any foul play at the hands of the respondents against the appellant. There was absolutely no ground to proceed against the respondents.

3. The outer thing is that it does not stand proved that Exh.R-10 was actually signed by the respondents. Not an iota of evidence has been pointed out by the learned counsel to show that Exh. R-10 was signed by the respondents. No witness stated that either he saw the respondents signing Exh.R-10 or that he was familiar with the signatures of the respondents and that Exh.R-10 .was bearing their signatures. If show cause notices had been given and in reply they had admitted their signatures or if there had been available evidence of their confession, of course it could be said that Exh.R-10 was signed by them. In the absence of such a proof too there was no occasion for they appellant to have taken action against the respondents.

4. The view of the Chief Editor was that the statement Exh.R-10 was against the policy of the appellant given in Exh.R-11. But there is no evidence that at the time of appointment or afterwards before Exh.R-10 is alleged to have been signed by the respondents, the said policy was brought to their notice. No appointment order of the respondents is on the record. So it is not known if in the appointment orders they were asked to act according to the said policy. No copy of terms and conditions of service are on the record to show whether they were given any instructions as to how they had to work. So far as Exh.R-11 is concerned, it does not bear the signatures of the respondents in token of having noted it down. If in reality Exh. R-11) was signed by the respondents and it was feared that they may publish any kind of news or writing like Exh.R-10, instead of terminating; their services, they should have been apprised of the contents of Exh.R-11 and asked not to publish such writing in Mushriq and is' after being warned they had done any such thing, of course them could have some scope to say that their presence in the appellants, establishment was not safe. The learned lower Court, therefore, half rightly directed the re-instatement of the respondents in service.

5. Respondent No.l alone has brought cross appeal for claiming) back benefits. If he claims back benefits then he shall have to refund the benefits which he has received.. Therefore, so far as respondent No.l is concerned, it is directed that his back benefits may be adjusted in the benefits received by him and if after adjustment the back benefits exceed, the excess should be paid to him. If the benefits received by him exceed the back benefits, the excess may be deducted from the benefits that he would get when ultimately his services will normally come to an end.

6. As a result of the above, the appeal of the respondent No.l is disposed of accordingly and the appeal of the appellant is dismissed.

A. E.

Order accordingly.

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