DECISION ' This is an appeal against the order, dated 9-4-1990, passed by the learned Presiding Officer, Sindh Labour Court No, III at Karachi, whereby the grievance petition of the respondent was allowed and he was ordered to be reinstated with fifty per cent back benefits.
2. I have heard Mr. Muhammad Abdul Qadir, learned Advocate for the appellants and Mr.Ch. Muhammad Iqbal, learned counsel for the respondent and have also gone through the record and proceedings of the case.
3. The brief facts of the case appear to be that the respondent was admittedly employed as permanent workman by the appellants. On 3-7-1989 he was charged with being in habit of remaining absent as he remained absent for eight days in the month of May, 1989 and for six days in the month of June, 1989. On 31-7-1989 he was again charge-sheeted under Standing Order 15(3)
(e) for having remained absent from 22-7-1989. He was found guilty of both the charges and his services were terminated by order dated 27-8-1989. However the respondent claimed that he was removed from service with effect from 23-7-1989 by oral order when he was gate stopped from entering factory.
4. The only point urged by Mr. Mohammad Abdul Qadir in this appeal is that appeal has been filed without serving grievance notice upon the respondent and therefore it was not maintainable. The grievance petition was filed by the respondent on 29-8-1989 and alongvith the grievance petition he submitted copy of grievance notice, dated 25-7-1989 wherein it was alleged that his services were terminated orally with effect from 23-7+,4989. He also submitted registration receipt and copy of A/D slip and also envelope which bears endorsement "refused". It is contended by Mr. Muhammad Abdul Qadir that as Mr. Shaheryar, General Manager of the appellant had denied the receipt of grievance notice in his written statement as well as in evidence the presumption that arose in favour of the respondent stood rebutted and burden shifted upon the respondent to prove the refusal by examining the postman. (It may be pointed out that this grievance notice and the envelope was addressed to the 'Manager/Occupier, M/s. G.E.C. Private Ltd.,S-29 SITE., Karachi. It is admitted that this is correct address of the appellant's factory. Thus presumption arose under the 'Evidence Act' and 'General Clauses Act', that notice would be deemed to have been received on the correct address. The endorsement of the postman that it was refused was also made by the postman in the course of his official business and would be presumed to be correct unless otherwise proved. Mr. Shaheryar is General Manager and not 'Manager' of the factory, to whom the notice as well as envelope was addressed. In his cross-examination he has admitted that he could not say if this notice, Ex. R/1 was offered to any official of the factory concern or to the Manager.
Under the circumstances his general statement that grievance notice was neither received nor refused would not be sufficient for rebuttal of the presumption under law, which is further supported not only by actual documents, grievance notice, envelope, registration receipt, A/D slip but also by the assertion in his affidavit in evidence by the respondent. In reply to "the charge- sheet, dated 31-7-1989 the respondent had in his letter, dated 8-8-1989, which is produced by the appellant as Annexure D had again asserted that his services were terminated on 23-7-1989 for which he had sent grievance notice to the establishment of the respondent through registered post. It may be pointed out that appellant did not reply to this letter of the respondent denying the assertion made therein.
5. It is settled law that there is no prescribed form in which the workman may bring grievance notice to the employer and that he could bring it to notice of employer in any form. Even Departmental appeal had been held to be a grievance notice. Reference be made to the case of Karachi Shipyard & Engineering Works Ltd. v. Second Sindh Labour Court and two others PLD 1975 Karachi 719. It is argued by Mr. Ch. Mohammad Iqbal that at least in letter, dated 8-8-1989, the receipt of which is admitted by the respondent, respondent had brought to the notice of the employer his grievance that his services had been terminated on 23-7-1989 illegally and therefore this letter could also be treated as grievance notice.
6. The appellant contends that the services of the respondent were terminated by order dated 27- 8-1989. However there is no proof that this order was served on the respondent. The appellants have not produced any registration receipt or acknowledgement receipt under which order was sent by post to the respondent. There is no signature of the respondent on the copy of this letter.
The respondent has denied receipt of this dismissal order. It may be pointed out thy grievance notice was filed by the respondent on 29-8-1989 whereas dismissal order is alleged to be dated 27-8-1989. There is also no evidence to show that the notice of enquiry was served upon the respondent. No question has been put to the respondent with regard to alleged service of notice of enquiry upon the respondent. The case of the appellant that the respondent was dismissed on 27- 8-1989 is further contradicted by suggestion in the cross examination of the respondent, that his services were terminated on 3-8-1989. Keeping in view all these facts, there appears to be some force in the contention of respondent that this alleged charge-sheet, dated 31-7-1989, the alleged 'enquiry' without notice and alleged 'order of dismissal' were manipulated by the appellants after termination of his services on 23-7-1989 and after they feared that he might go to 'Court of Law' when he sent them grievance notice.
7. Mr. Mohammad Abdul Qadir relied upon the case of Khair Mohammad v. Akhta Hussain 1983 CLC 302, wherein the learned Single Judge of Sindh High Court, Karachi held that 'when notice was posted with correct description of addressee and returned back with endorsement of refused by postal authorities the presumption of service of notice would arise in circumstances. It was further held that when addressee appeared in Court and made statement on oath of having not received the notice, the initial burden of proving service of letter continued to remain on person relying on service and burden was to be discharged by calling postman concerned. I have already pointed out that the addressee viz. Manager has not been examined but General Manager Mr. Shaheryar has been examined who has shown ignorance whether the notice was offered to the Manager or any Officer of the establishment. Under the circumstances the burden of rebuttal of presumption has not been discharged by the appellants in order to shift burden of proof upon the respondent.
8 . Similar view was taken by their Lordships in the case of Gulzar Begum v. Sairah Bibi 1972 SCM R 251, wherein the addressee had denied receipt of letter or that the acknowledgement receipt bore her signature. It was held by their Lordships that the Court was bound to get signature compared with admitted signature. This case is also distinguishable from the instant case..
9. Even if it is held that notice is not proved to be served upon the appellant still grievance of the respondent that he was removed from service on 23-7-1989 was brought to the notice of the employer vide letter of the respondent dated 8-8-1989 which has been produced by the appellants themselves as Annexure 'D'. Under the circumstances the objection of Mr. Muhammad Abdul Qadir that no grievance notice was served upon the appellants has no force.
10. I find no merits in this appeal which, is, accordingly, dismissed.