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Appeal No. KAR-157 of 1976, heard on 8th November, 1976.

-- S. 25-A-Dismissal-Letters and notices sent to worker returned with postman's remark of addressee having refused to take delivery-Second show-cause notice and inquiry report served on worker and his dismissal order, on being refused, published in news paper-Contention that worker being in Jail evidence relating to service, was false-Except bare word of worker no evidence to show date of his arrest-No documentary evidence of his detention in Jail produced--Letters and notices having been sent to worker at his correct address, service presumed-Worker replying offering willingness to participate in inquiry after firs release from jail but no reply sent even after his release-Worker, held, adopted dilatory tactics to avoid inquiry awl did not participate in inquiry intentionally and he had thus no cause for grievance.

Hamid M. Siddiqui for Appellant.

Mohmood A. Ghani for Respondent.

Date of hearing: 8th November 1978.

DECESION

The is an appeal against the order of the Labour Court dismissing the application made under section 25-A, I. R. O.

2. The appellant was in the permanent employment of the respondent. He committed some acts of misconduct and, therefore, he was charge-sheeted. He failed to participate in the inquiry which was held ex parte. He was found guilty and, therefore, dismissed from service. Aggrieved by this, he approached the Labour Court after serving grievance notice as required by section 25-A, I. R. O.

3, The application was resisted and it was pleaded that in spite of several opportunities the appellant failed to participate in the inquiry and, ther4'ore, ex parte inquiry was held and since he was found guilty he was dismissed from service after second show-cause notice.

4. The Labour Court on the assessment of the evidence found against the appellant and dismissed the application.

5. According to respondent, the appellant waft guilty of misconduct on three counts. The first charge was that he had on 19th June, 1975 instigated staff of two banks to resort to illegal strike and in addition he convened an illegal meeting and shouted derogatory slogans by using filthy language against the officers of the bank. This charge-sheet is dated 26th June, 1975.

6. The second charge-sheet is dated 8th July, 1975 for the allegation that the appellant remained absent without leave for more than 10 days.

7. The third charge-sheet is' dated 25th September, 1975 for the allegation of insubordination.

8. It is the case of the Management that three letters dated 8^th July, 1975, 24th September, 1975 and 3rd November, 1975 and one letter bearing no date were wont to the appellant by registered past but the same were received with the endorsement of the postman as refused. Consequently, one notice was published in the newspaper dated 5th November. 1975. Since the appellant did not submit any explanation and did not appear to participate in the inquiry, the proceedings were started ex parte and the appellant was found guilty of the charges. It is also contended that the second show-cause notice and the inquiry report were served upon the appellant and thereafter he was dismissed from service. The dismissal letter sent by registered post was refused and, therefore, it was published in the newspaper. These facts, as stated by the Management, have been fully established by the documents which were produced in the Labour Court.

9. In order to meet the allegations of the service of notice and the, endorsement by the postman it was contended on behalf of the appellant that he was arrested on 9th June, 1975 and was released on bail on 3rd September, 1975, and, therefore, the endorsement of the bailiffs and the various registered letters sent during the period were false and consequently, tile endorsements of the postman on the remaining letters should also bee presumed to be false.

10: I am unable to accept the contention raised by the learned counsel. Except the bare word of the appellant there is no evidence to show when the appellant was arrested. The appellant failed to produce the documentary evidence from the jail where he was detained. Since the important evidence was withheld it must be presumed that there is no substance in the allegation that he was in jail when the registered letters were sent to the appellant. It is an admitted position that the letters were sent on the correct address of the appellant. Of course, at one time the appellant was arrested and when this came to the notice of the Management the charge-sheet was sent to the appellant through the jail authorities and it was served upon him. The appellant sent a reply that he would participate in the inquiry after he was released from jail. It is an admitted position that he was release on bail on 3rd September, 1975, yet he did not approach the Management nor he sent any explanation of the charge-sheet which was served upon him. As already pointed cut, it has been established that some letters were sent to him after he was released on bail, so it cannot be said that he was not in a position to defend himself and participate in the inquiry. The notice was even published in the newspaper but it is contended that the notice was in Urdu whereas the appellant was Gujrati. Even this is of no avail as it has been admitted by the appellant in the cross-examination that he tad been studying Urdu. So the publication of the notice in the newspaper in Urdu does not invalidate the notice.

11. Although, it was admitted that the second show-cause notice with the inquiry report was received by the appellant but it was contended that the dismissal order was never served upon him. The simple answer to this is that the dismissal order was also despatched by registered post and it was received back as refused as endorsed by the postman. Not only this but the dismissal order was also published in the newspaper.

12. In the circumstances it cannot be held that he had no opportunity to defend himself. In fact, several opportunities were allowed and since he avoided to participate in the inquiry there was no alternative for the Management but to hold ex pane inquiry and take the action as was taken on the result of the inquiry. The falsity of the allegations is further borne out by the fact that, although, the appellant had pleaded that he was ill but in one application dated 9th September, 1975 he pleaded that due to unavoidable domestic work he could not attend the duty and in the second application dated 22nd September, 1975 he stated that he had to proceed to Peshawar to attend to some urgent family affairs. It is therefore, clear that he was adopting dilatory tactics to avoid the inquiry and intentionally did not participate. Consequently, he has no cause for grievance. He himself is responsible for the ex parts inquiry which was held.

13. In the circumstances the appeal is dismissed.

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