1. This is an appeal against the order of the Labour Court who allowed the application of Basheer Ahmad under section 25-A of I.R.O. 1969 without back benefits.
2. The facts of the case are that appellant Basheer Ahmad was working as fitter in Loco-shed Rohri.
3. Suddenly he fell seriously ill and was brought to his native place. He remained under treatment of a qualified doctor from 20-8-1982 to 11-6-1983. He reported for duty on 12-6-1983 when he was given a show-cause notice. On 20-6-1983 he was removed from service without holding Departmental Enquiry.
4. I have heard the Advocates of the parties and perused the record. The points for determination in this appeal are as under: - (1)Whether the applicant has given grievance notice to the respondents as required under section 26-A of the I. R. O., 1969?
5. (2)Whether the applicant has been illegally removed from service?
6. The respondent in para. 12 of his grievance application has stated that on 9-8-1983 he gave grievance notices to the appellants, which was served on them on 11-8-1983. He has stated the same facts in his affidavit also. In support of his contention, he has produced a copy of the grievance notice dated 9-8-1983, and acknowledgement receipt which bears the address of the respondent and the appellant No.1 and Registry No. 46. He has also produced attested copy of the receipt of Registry No. 47 and has claimed to have sent grievance notice to the appellant No. 2 through Registry No. 47. Subsequently, the respondent has produced two postal receipts bearing No. 46 which is containing the address of appellant No.1 and receipt No. 47 which is bearing the address of appellant No.2. The respondent has stated on oath that he had sent grievance notice to the appellant No.1 and 2 through Registered Post A/D. He has produced acknowledgement receipt of the service of the notice on appellant No. 1. But he has contended that the acknowledgement receipt of the service of the notice on appellant No.2 was not available with him, hence, he had produced the attested copy of it. The postal receipts are in sequence bearing Registry Nos. 46 and 47 and are bearing the addresses of appellants No.1 and 2. In view of the attested copies of the acknowledgement receipt and postal receipt strong presumption can be drawn that the respondent had given grievance notice to the appellant through registered post A/D. The notice sent through registered post is sufficient proof of the service of the notice. It is admitted position that the respondent had been removed from service vide order dated 20-6-1983 and thereafter, he has preferred Departmental Appeal, which has been rejected and the result has been communicated to him on 6-8-1983 and thereafter, he has given grievance notice dated 9-8-1983, which he has got registered on 10-8-1983, in view of these facts, the grievance notices given by the respondent to the appellants are well within time hence my finding on this point in affirmative.
7. It is admitted position that the respondent had remained absent from 20-8-1982 to 11-6-1983. On 11-6-1983 he had given duty report with medical certificate of his illness and on the very day he was served with show-cause notice which was supplied vide letter dated 13-6-1983. The contention of the respondent is that he was all along lying ill and was under treatment of registered medical practitioner at his native place Khanpur. In support of his contention he has produced medical certificate dated 11-6-1983. The appellants all along had admitted in their reply statement as well as in affidavit of Mr. Amir Hussain Akbar, that no Departmental Enquiry in case of the respondent was held. They have claimed that the respondent had admitted his guilt in his reply statement, hence they need not to hold enquiry and passed he impugned order of removal from service on the reply of the respondent. Amir Hussain Akbar in his cross-examination had admitted that the respondent in reply to the show-cause notice, had submitted medical certificate of the Private Doctor. The reply of the respondent to the show-cause notice and neither been produced by the appellants nor by the respondent. The admission of Amir Hussain Akbar the witness of the appellant that the respondent with his reply to the show-cause notice had submitted medical certificate of Private Doctor, gives support to the version of the respondent that he in his reply had taken plea of his illness and had not plead guilty. Under the circumstances the appellant, according to the rules, were to hold Departmental enquiry in case of the respondent or at least to provide him an opportunity to be heard in person to defend his case. But from the facts on record it is obvious that no opportunity had been provided to the respondent to defend his case and the impugned order of removal from service has been passed only on his reply to the show-cause notice and as such they have violated the provisions of Railway (E&D) Rules, 1975.
8. For the period of illness of the respondent no back benefits are allowed. Considering the above facts, I dismiss this appeal.