' The 3 respondents, who were permanent workmen of the appellant establishment, were convicted by a Summary Military Court on the charges of staging an illegal strike and creating disturbance in the factory of the appellants. Consequent upon their conviction, their dismissal orders were issued.
The dismissal orders in respect of Mubarak Hussain, who is said to be the Cashier, of the C. B. A. In the appellant establishment, and respondent Muhammad Ali, were issued on 10-1-1979, while the dismissal orders in respect of Israr Khan, who is said to be the Vce-President of the C. B. A., were issued on 11-1-1979. These orders are said to have been sent to the 3 respondents at the Central Jail, Sukkur, where they were undergoing sentences imposed by the Summary Military Court, but the registered covers in which the dismissal orders were contained were returned by the postal authorities with the endorsement "refused". It appears that the respondents remained in Jail till 18/19, September, 1979. It is their case that on release from prison, they attempted to report for duty at the appellants' factory, but they were not taken on duty, and consequently, all 3 of them served grievance notices on the appellant establishment on 8-10-1979. As their grievance were not redressed, they filed separate grievance petitions on 8-11-1979. All the 3 grievance petitions were allowed by the learned VlIth Labour Court by a consolidated decision, given on 26-6-1980.
Aggrieved by this decision, the appellant establishment has come up in appeal to this Tribunal.
2. Mr. Mahmood A. Ghani, the learned Representative for the appellant establishment, has assailed the impugned decision of the learned Labour Court on the grounds-
(1) that the grievance petitions of the respondents were not maintainable as the requisite grievance notices were not filed by the respondents within 3 months of the cause of action having accrued to them, as provided by section 25-A, I. R.
0. ; and the orders of dismissal in respect of the respondents were in fact orders of termination of services and were in accordance with the provision of Standing Order 12.
3. It is not disputed that respondents Mubarak Hussain and Muhammad Ali were convicted by the Summary Military Court under Martial Law Order 23 on 10-1-1979, and each of them was awarded imprisonment of I year, while respondent 'scar Khan was similarly convicted and sentenced by the Summary Military Court on 11-1-1979. It has further been established that on the very date of their convictions, letters of their dismissal were issued by the appellant establishment and sent to the respondents care of the Superintendent, Central Jail, where they were undergoing their sentences, by registered post, A/D. The learned Labour Court has taken the view that these dismissal orders were not served upon the respondents. This view is mainly based upon the provisions of rule 546 of the Rules for the Superintendence and Management of the Prisoners in Pakistan. The said rule provides that "no letter shall be delivered to or sent by a prisoner until it has been examined by the Superintendent or an officer authorised by the Superintendent in this behalf ..........". The learned Labour Court has held that since the registered covers in which the orders of dismissal of the respondents are said to have been sent, were returned unopened, it cannot be accepted that the dismissal orders were either served upon the respondents or that they had refused to accept the delivery of these orders. The learned Labour Court, however, appears not only to have misappreciated the evidence of the Jail Superintendent, Syed Mustafa Hussain, but also failed to take into account the significance of the endorsement on the registered covers by the postal authorities as also the evidence of the Labour Welfare Officers of the appellants. The Jail Superintendent has very, categorically asserted that the 3 registered covers in question were brought by the postman to the Central Jail for delivery to the 3 respondents, but since the respondent refused to take delivery of the same, he directed the potman to writ "refused" on the covers and take back the letters. Since the respondents had refused to take delivery of the letters, no occasion arose for the Sup-Superintendent to censor the letters or even to open them for the purposes of censorship, as the provision for censorship applies only where a letter is to censership of letters which are returned unopened due to the refusal to be delivered to a prisoner. As I read- rule 546, it does not require censorship of letters which are returned unopened due to the refusal of the prisoner to accept the same or for any other cause.
4. Another circumstance which weighed with the learned Labour Court in not relying on the evidence of the Jail Superintendent was that he has made no endorsement on the covers said to contain the dismissal orders. No rule, however, was cited requiring the Superintendent to endorse every cover brought to the Jail, specially in case of covers the delivery whereof was refused and in consequence the covers are returned unopened. In the case of the latter type of letters, therefore, the normal postal practice is to be followed and the endorsement by the postman that delivery was refused by the addressee would be enough.
5. Section 27 of the General Clauses Act, 1897, provides that where a cover, properly addressed, is sent by registered post, than such cover is presumed to have reached the addressee at a time when the cover would have ordinarily reached him in the normal course of postal business.
Despite, therefore,, the refusal of the respondents to receive the registered covers containing the orders of dismissal, they are deemed to have been served with such orders on the dates that they refused to accept the covers. In support of this proposition, Mr. Mahmood Ghani relied upon the decision in the case of Munawwar Hussain v. Superintending Engineer (Agricultural). In that case, the question which arose for consideration by a Division Bench of the Karachi High Court was whether a charge-sheet sent to a workman by registered post was duly served upon the workman.
It was held by the Division Bench, on the basis of the provisions of section 27 of the General Clauses Act, that the presumption would be that the workman had been served with the charge-sheet unless he could show to the contrary. Similar view has been taken in the cases reported in (1) P L D1 1977 Kar. 37, (2) 1980 CLC 71, (3) 1980 PLC 665, (4) 1980 PLC 669, (5) 1979 PLC 490 and (6) 1979 PLC 502. In the case reported in 1980 PLC 669, it was held by this Tribunal that as the dismissal orders were sent to the workman by registered post in a cover which the appellant himself has admitted bears his correct Address, the employer has done all that was required by him to do, and if the workman did not accept the delivery of the registered cover, he cannot be allowed to take advantage of his wrong. The above authorities thus strongly support the contention of Mr. Mahmood Ghani that the employer had done all that was required of it to serve the dismissal orders upon the respondents, but they unreasonably refused to accept the delivery of the said orders.
6. Apart from the endorsement on the registered covers by the postal authorities, there is strong direct evidence to the effect that the respondents had refused to take delivery of the same. The Jail Superintendent, Syed Mustafa Hussain, has testified before the Labour Court that he had collected the respondent and asked them to take delivery of the registered covers sent to them by the appellant establishment but they refused to take delivery of the same and consequently he had asked the postman to endorse on the covers the fact of such refusal. Since the only letters sent by the appellant establishment to the respondents were the orders of dismissal, it is obvious that these covers contained the dismissal orders. In fact, the unopened covers were opened in the Court and the dismissal orders were found in the covers. The Jail Superintendent was not only an independent witness, who had no reason to give false testimony against the respondents. But further he was the most natural and important witness, as the service was sought to be affected in the Jail. The learned Labour Court has given artificial and unconvincing reasons for not relying on his testimony.
7. There is still a third piece of evidence to indicate that the orders of dismissal were duly communicated to the respondents. Witness Lal Khan. Who is the Labour Welfare Officer in the appellant establishment, has testified that on 17-2-1979, he had taken the legal dues, including the gratuity amount payable to the respondents, to the Central Jail for payment to the respondents but they refused to receive the same as also the orders of their dismissal. He is corroborated in this behalf not only by the Jail Superintendent, Syed Mustafa Hussain, but there is also a statement in writing signed by each of the 3 respondents and the other workmen of the appellant establishment who were with them in the Central Jail, that they had refused to accept the dues offered as their cases were still sub judice. The respondents have admitted their signatures on this statement and hence there is no escape from the position that they had declined to accept the payments offered by witness La! Khan on behalf of the appellant establishment. Mr. Hassan Hameedi sought to assail this evidence on the basis of rule 69 of the Prison Rules but that rule is attracted only in cases where monies are actually received by or are in the actual possession of the prisoners, which is not the case here.
8. Since the registered covers containing the dismissal orders are deemed to have served upon respondents Mubarak Hussain and Muhammad Ali on 10-1-1979, and upon respondent Israr Khan on 11-1-1979, they should have served grievance notices upon the appellant establishment within 3 months thereof. Apart from the service by post, there was a second attempt to serve the dismissal orders upon the respondents by witness Lal Khan on 17-2-1979. However, the grievance notices were served by the respondents an 8-10-1979, much beyond the period of limitation. As an essential requirement of law is the service of grievance notices within 3 months of the grievance having arisen and since this requirement of law has not been fulfilled in these cases, the grievance petitions of the respondents are clearly not maintainable.
9. The learned counsel for the parties also argued in regard to the merits of the case. It was contended by Mr. Mah mood Ghani that though the wording of the orders sought to be served upon the respondents seems to suggest that they were orders of dismissal, but since the appellant establishment had sought to pay all the dues of the respondents, including notice pay and gratuity, the orders should really be treated as orders of termination of services under clause (i) of Standing Order 12. On the other hand. Mr. Hassan Hameedi sought to argue that as the orders in question themselves recite that the respondents were being dismissed from service and that as further the orders were founded on the alleged misconduct of the respondents in taking part in an illegal strike and creating disturbances in the factory of the appellant, the appellant establishment should have followed the procedure provided in clause (4) of Standing Order 15, which it admittedly did not do. There may be force in the contention of Mr. Hassan Hameedi, However, I am not inclined to go into this issue in view of my finding that the grievance petitions of the respondents are not maintainable by reason of the grievance notices not having been served upon the appellant establishment within the prescribed. Period. Similarly, it will be fruitless to examine the contention raised by Mr. Hassan Hameedi that the appellant establishment was motivated by mala fides in issuing dismissal orders in respect of the 3 respondents, when other workers, who were similarly involved, were re-instated in service.
10. The upshot of the above discussion is that I set aside the impugned decision of the learned Labour Court and allow all the three appeals. The back benefits deposited by the appellant establishment are ordered to be refunded to it. PLD 1971 Kay. 733