DECISION ' This appeal is directed against the order of the learned Presiding Officer, Sind Labour Court No, V at Karachi, dated 10-9-1988, whereby he allowed the grievance petition of the respondent.
2. The brief facts leading to this appeal are that the respondent is admittedly a workman employed with the appellants. It is alleged that on 16-6-1986, at about 10-30 a.m., he collected about 150 employees of the appellants and surrounded the office of Mr. Shamsuddin Abro, Principal, K.T.C.
Raising slogans against the management, using abusive language and tore the official papers, therefore he was charge-sheeted for misconduct under Standing Order 15(3)(a) and (h) and after due enquiry was dismissed from service. The respondent after serving grievance notice filed grievance petition which was decided in his favour. The case of the respondent is that he was never served with the charge-sheet and that the enquiry was conducted in his absence and the action taken against him was mala fide.
3. I have heard Mr. Narayan Das, learned Advocate for the appellants and Mr. Khalilur Rehman, learned representative on behalf of the respondent.
4. The main point which requires consideration is whether the charge-sheet was served upon the respondent. Admittedly the charge-sheet was sent by the appellants in the name of the respondent on the address of the union of which he was the General Secretary by registered post, A.D. The A/D was received back purporting to bear the signatures of the respondent. However, the respondent denied the service of any charge-sheet upon him in his grievance notice, grievance petition as well as in affidavit-in-evidence. In the cross-examination, he was confronted with the A/D receipt and he denied the signature on it to be his. The appellants had examined one Mr. Muhammad Shamshuddin, Assistant Superintendent, Karachi Saddar Post Office. He has produced the postal receipt issued by the Saddar Post Office as Exh. 5/A, the letter as Exh. 5/B and also produced A/D receipt of Exh. 5/D which are all in the name of Muhammad Rafiq viz., the respondent. He has also produced record of the Post Office Exh. 5/C which indicated that the said letter was delivered to its addressee. However, in the cross-examination, he had admitted that he could not definitely say that Exh. 5/D bears the signature of Muhammad Rafiq. Admittedly he is not the person who delivered the registered letter containing the charge-sheet to the addressee. Mr. Narayan Dad, the learned counsel for the appellants has argued that the presumption under the law is that when the letter is sent on the correct address, it will be presumed to have been received by the addressee. There is no dispute with regard to this legal presumption, but, it is a rebuttable presumption. Mr. Khalilur Rehman, the learned Representative for the respondent has submitted that in view of the statement on oath of respondent that he had not received charge-sheet and that the A.D. Receipt Exh. 5/D did not bear his signature, the legal presumption stood rebutted and the burden was shifted upon the appellants to prove that the envelope containing charge-sheet was duly received by the respondent. He contends that this could have been proved by the appellants by either examining the postman, who had delivered the envelope to the respondent and in whose presence the respondent purportedly signed the A/D receipt; or the signature on A/D receipt could have been sent to the Handwriting Expert for comparison with the admitted signatures of the respondent. It is submitted that the appellants had not adopted any of these modes to prove the receipt of the charge-sheet by the respondent and as such under the circumstances, it cannot be held that the charge-sheet has been duly served upon the respondent.
5. Mr. Narayan Das, the learned Advocate for the appellants had relied upon the case of Muhammad Sharif v. Maqbool Ahmed and others 1974 SCMR 136. In that case, their Lordships had observed that there was no need in circumstances to examine postman to prove refusal to take delivery when there was no denial on oath before the Court by the addressee about the non- receipt of the notice. Apparently this case does not help Mr. Narayan Das, the learned counsel as in the instant case there is a denial on oath by the respondent about the receipt of the registered letter. He has also relied upon the case of Bashir Ahmed v. Mumtaz Khan PLD 1965 (W.P.) Lah.
126. In that case, the question was whether the notice sent by registered post returned back with endorsement `refused' was sufficient evidence of service without examining the postman who made this endorsement. It was observed therein that "under section 114 of the Evidence Act, it must be presumed initially that the notice has reached the addressee and it was refused by him. Where a presumption arises and the defendant has denied receipt of the notice, the question whether the notice was served on and refused by the addressee, is not a question of law and must be decided as a fact, weighing in scales the presumption raised and the denial by the addressee of having received it." Thus, even this case does not help Mr. Narayan Das as no presumption under the law could prevail, but, it would be a question of fact for the Tribunal to decide whether service was made upon the respondent or not. He has also relied upon PLD 1981 SC 225, but, the facts of that case are quite different as in the reported case the employee had not furnished his fresh address to the employer, therefore, their Lordships have held that non-service of notice in such case was due to negligence of the employee himself who did not keep the employer informed of his fresh address.
6. In the instant case, admittedly, the home address of the respondent was available with the applicants, but the letter was not addressed on his home address as it was sent on the address of union of which he was General Secretary. The letter was not returned back with an endorsement of 'refused', but, appears to have been received by some person other than the respondent who has denied to have received this letter or to have signed the acknowledgement receipt Exh. 5/D. The learned trial Judge compared the signatures on the A/D receipt with n the signatures of the respondent on various documents in the case and came to 'I' the conclusion that the signatures do not tally. I have also compared the signatures and find that prima facie they do not appear to tally.
7. No specific mode of service is provided under the Labour Laws, but, in the proceedings before the Labour Court under section 36(2), I.R.O. 1969, it is provided that the Labour Court shall, for the purpose of adjudicating and determining any industrial dispute, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure. In practice the procedure for service of summons/notice is same as provided under the C.P.C. Under Order 5 Rule 12, C.P.C., where it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. Under Rule 15, where in any suit the defendant cannot be found and has no agent empowered, to accept service of the summons on his behalf, service may be made on any adult member of the family of the defendant who is residing with him.
8. In the instant case, neither there is any authorized agent nor the service had been made on any adult member of the family. The service is alleged to have been made upon the respondent, which as pointed above, is denied by the respondent and is not properly proved by the appellants. Under the circumstances, it cannot be held on the basis of a legal presumption, which is rebuttable, that due service has been made of the charge-sheet upon the respondent. This conclusion also finds support from the admitted position that during the course of enquiry when the respondent protested that he had not C received the charge-sheet, he was served with the charge-sheet on 25-9-1986 viz., after more than 3 months of the alleged date of misconduct by the respondent.
Under the circumstances, the order of dismissal would be had under Standing Order 15(4) which provides that no order of dismissal shall be made unless the workman concerned is informed, in writing, of the alleged misconduct within one month of date of such misconduct. In view of this legal and factual position, the order of dismissal has rightly been held to be illegal by the learned Labour Court and no interference is called for in this appeal.
9. I need not discuss the other pleas raised by the parties as the noncompliance of the provisions of Standing Orders 15(4) and principles of natural justice have vitiated the subsequent enquiry proceedings. The appeal is accordingly dismissed and the order of the learned Labour Court is maintained.