This appeal by an Industrial Establishment is directed against the decision given on 1st July, 1978, by the learned Labour Court No. It, Karachi, directing the re-instatement of the respondent in the service of the appellant and giving him continuity in service with back benefits.
2. The respondent, who was employed as an unskilled worker in the establishment of the appellants, remained absent from his duties from 1st June, 1976, up til 17th August, 1976. In justification of his absence, he produced certificate and slips from the Social Security Dispensary. In view of these certificates, the appellants, who had dis--missed the respondent from service, vide their letter dated 19th August 1976, took back the respondent in service and withdrew the letter of dismissal.
3. The case of the appellants is that the respondent attended his duties for 2 hours on 2nd September, 1976, and thereafter has conti--nuously remained absent unauthorisedly from his duties. It is further the case of the appellants that by reason of the respondent remaining absent from his duties, he was sent a charge-sheet, dated 9th October 1976, and a letter for the holding of a domestic enquiry, dated 13th October 1976, advising him to appear before the Enquiry Officer on 18th October, 1976, and a second show-cause notice, dated 22nd October, 1976. The case of the respondent, on the other hand, is that he was gate-stopped and has not been allowed to perform his duties. The respondent further claims that he came to know of his dismissal from service on 30th October 1976, when he was gate-stopped by the Chowkidar of the appellants and consequently he sent a grievance notice to the appellants on 10th December 1976, under Certificate of posting. As no action was taken by the appellants on this grievance notice, the respon--dent filed an application under section 25-A of the Industrial Relations Ordinance, 1969, before the learned Court on 19th February, 1977.
4. The learned Labour Court, after considering the evidence led by the parties, came to the conclusion that there was no tangible evidence to show that the dismissal order, second show- cause notice and the date on which the domestic enquiry was to be held were communicated to the respondent. He further repelled the contention of the appellants that no grievance notice was given by the respondent and held that a grievance notice sent under certificate of posting was due service under the law.
5. The only 2, points which have been argued before me in this appeal for :-
(i) whether the charge-sheet, the date of holding the enquiry, the second show-cause notice and the order of dismissal were duly served upon or communicated to the respondent ; and
(ii) whether the respondent had given grievance notice to the appellants. ,
6. As regards the service of the charge-sheet, Mr. Zamirul Hassan, the learned counsel for the appellants, referred me to para. 15 of the petition under section 25-A of the Industrial Relations Ordinance, 1969, filed by the respondent wherein the respondent has admitted to have `received a charge-sheet on 11th October, 1976, alleging false charge of absence'. Mr. Zamir ul Hassan also invited my attentions to the affidavit given by the respondent in support of his petition under section 25-A, in para 18 of which the respondent has clearly admitted having received a letter intimating him the date on which the enquiry was to be held and also the receipt of the second show-cause notice and has only contend--ed that his request for adjourning the enquiry on account of his illness was refused and similarly his request for being furnished a copy of the enquiry report was refused. Apart from the fact that the appellants have denied that any such requests were made to them, the respondent has not asserted in his petition under section 25-A or in his grievance notice that any such requests were made and rejected by the appellants. This grievance, therefore, appears. To be an afterthought.
7. As regards the service of the dismissal order, the receipt of which has been denied by the respondent, it was admitted by Mr. Zamir-ul-Hassan that it was sent to the respondent under ordinary post and not by registered post A/D and he frankly conceded that he was unable to cite any authority or any law indicating such sending to be good and due service. The learned counsel, however, sought to rely on the grievance notice, dated, 10th December 1976, produced before the Labour Court by the respondent, wherein there appears to be an implied admission of receipt of show cause notice. However, the admission is coupled with the allegation that copy of the enquiry report was not furnished to him though he had applied for it. It also contains the specific grievance that no orders of dismissal were communicated to him and it was for the first time on 10th December, 1976, when he went to the Mills of the appellants, that he was informed by the gateman that his services were terminated and as such it was pointless his coming to the Mills. I am, therefore, of opinion that dismissal orders were not served upon or communicated to the respondent till 10th December, 1976.
8. So far as service of the grievance notice by the respondent upon the appellants is concerned, as already stated, it was sent by the respondent to the appellant under Postal Certificates. The said Postal Certificate as well as a copy of the grievance notice were produced by the respondent before the Labour Court. Mr. Zamir ul Hassan has submitted that mere sending of the grievance notice under a postal certificate is not service as envisaged under section 25-A (1) of the Industrial Relations Ordinance, 1969. He further submitted that the so-called postal certificate was not a proper document in as much as it was a plain piece of paper while the prescribed certificate of posting is a printed certificate, a copy whereof he produced before me. According to the instructions on the certificate of posting, any articles, in respect of which this certificate is issued, are not regis--tered, and will not be checked in the post and will be treated as if they had been posted in a letter box, and further in the event of loss, damage or delay, this certificate will confer no title to compensation. The certificate further advises that in order to obtain complete check in the post, recourse should be had to registration.
9. Mr. Mirza Muhammad Kazim, the learned Counsel for the respondent, on the other hand, contended that service under certificate of posting should be considered to be good and proper service, unless there is evidence to the contrary, since presumption of regularity and proper performance attaches to official acts, which presumption has not been rebutted in the instance case. In support of his contention, the learned Counsel referred me to a decision of this Tribunal in the case of Zaibtun Textile Mills v. Labour Union, Karachi (1972 PLC 507) and an unreported decision of the High Court in Constitution Petition No. 176 of 1974. In the Zaibtun Textile Mills' case, the learned Chairman of the Labour Appellate Tribunal has observed as follows :----- "Where a letter is proved to have been properly addressed and posted there is a presumption that it reached the addressee in due course. To raise a presumption, of its due delivery to the addressee all that has to be proved is that the letter was properly addressed and posted."
10. In Constitution Petition No. 176/74, the learned Single Judge of the Karachi. High Court before whom the above ruling of the Labour Appellate Tribunal was cited, approved the view taken by the learned Chairman but, however, without any discussion. With great respect for these 2 decisions, I find myself unable to concur in the views expressed therein. No law has been cited or referred to in either of these 2 decisions in support of the view that a letter sent under Postal Certificate or by ordinary post is deemed to be good service or is presumed to be received at the address written thereon when the letter would have reached its destination in the ordinary course. On the other hand, section 27 of the General Clauses Act provides as under :- "27. Where any Central Act or Regulation made after the com--mencement of this Act authorises or requires any document to be served by post, whether the expression `serve' or either of the expressions `give' or send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre--paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
11. The Law, thus, contemplates due service to be service by registered post of a letter or document which has been properly addressed and which bears the correct postage. I am, therefore, of the view that it has not been established that grievance notice was given by the respondent to the appellants. As the giving of the grievance notice is sine qua non to the maintainability of an application under section 25-Al of the Industrial Relations Ordnance, 1969, and as I have already held that such notice was not given by the respondent to the appellant, I would allow this appeal and set aside the order of the lower Court.