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Appeal No. KAR‑440 of 1978, heard on 31st July, 1979.

‑‑‑ S. 25‑A‑Limitation‑Petition against dismissal‑Dismissal order sent not on given address by registered post but under certificate of posting‑‑‑No services or communication‑No presumption regarding service attached to such despatch‑Appellant contending non‑receipt of dismissal order till receipt of a subsequent letter from employer‑Limitation, in circumstances, held, to run from date of receipt of subsequent letter and not from date of dismissal order sent under certificate of posting‑General Clauses Act (X of 1897), S. 27.

Olympia Spinning & Weaving Mills v. Fazal Wahid Appeal No. KAR‑302/19 of 1978 ref.

‑‑ S. 25‑A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 1 Petition against dismissal resisted as not maintainable on contention that petitioner was employed at Head Office where number of employees was less than 20‑Contention rejected‑ Head office and factory treated as one establishment.

Abdul Rahim v. Congothene Chemical Industries Ltd., Katachi P L J 1977 Tr. C (Lah.) 96 ref.

‑‑‑‑ Notice‑Service of ‑Mere sending a letter, etc. under certificate of posting‑Not sufficient to prove proper service.

Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal 1975 P L C 818 ref.

‑‑ Dismissal‑Supply of report of enquiry and second show‑cause notice not proved‑Dismissal order, in circumstances, not sustainable.

1976LLC613rel.

M. M. Jeelani for Appellant.

Masood Mirza for Respondent.

Date of hearing : 31st July, 1979.

This is a worker's appeal calling in question the decision given by the learned 1st Labour Court, dismissing the application filed by the appellant for re‑instatement in service, together with back benefits, and for holding his suspension beyond 4 days as illegal.

2. The appellant, who was employed by the respondent as a Cotton Collector on a salary of Rs. 512 per month, was suspended from service, pending the holding of a domestic enquiry, vide letter of the respondent, dated 24th February, 1975. A domestic enquiry was thereafter held and in consequence thereof the appellant's services were terminated, vide respondent's letter dated 7th April, 1975. The appellant sent a grievance notice, dated 1st January, 1975, to the respondent but as he obtained no redress, he submitted an application to the Labour Court on 9th March, 1976, under section 25‑A of the Industrial Relations Ordinance, 1949.

3. The application was resisted by the respondent on the grounds, firstly, that it was not maintainable as the appellant was not a workman but was employed mainly in managerial administrative capacity secondly that the respondent's Head Office, where the appellant was employed, is neither on industrial nor a commercial establishment but is covered by the provisions of the Sind Shops & Establishments Ordinance, 1969; thirdly, the appellant remained under suspension only till 22nd February, 1975, whereafter he absconded, that fourthly the application was hopelessly time‑barred; that fifthly, due domestic enquiry was held in which the appellant was found guilty of misconduct and finally, that the appellant was duty served with a second show‑cause notice and the orders of his dismissal.

4. The learned Labour Court held that the appellant's application was time‑barred in as much as the dismissal from service of the appellant took place on 7th April, 1975, while the application under section 25‑A of the Industrial Relations Ordinance, 1969, was filed by the appellant some 11 months later, on 9th March, 1976. It further held that the appellant had failed to establish that more than 20 persons were working in the Head Office of the respondent where the appellant was employed. On these twin grounds, the learned Labour Court dismissed the application of the appellant.

6. A workman is entitled to represent to his employer against his dismissal within 3 months of the dismissal. He obviously cannot make the representation unless the orders of dismissal are served on him or otherwise properly communicated to him. In the instant case, the orders of dismissal are said to have been sent to the appellant under certificate of posting. This certificate contains the printed warning that the postal articles, in respect of which the certificate is issued, are not registered, and will .not be checked in the post and will be treated as if they had been posted in a letter box, and further in the event of loss, damage or delay, this certificate will confer no title to compensation. The certificate further says that to obtain complete check in the post, recourse should be had to registration. The appellant has denied that he received the orders of dismissal said to have been sent to him under certificate of posting. I have held in Appeal No. KAR‑302/78, Olympia Spinning & Weaving Mill v. Fazal Wahid that no presumption attaches to a letter sent under certificate of posting that it must have reached the addressee in due course, on account of the vagaries of the postal system, and that presumption under section 27 of the General Clauses Act regarding service attaches only to letters sent by registered post, which are correctly addressed and actually posted. I am, therefore of the view that there was no service or communication to the appellant of the orders of the dismissal from service. Further more, the alleged dismissal of the appellant on 7th April, 1975, is inconsistent with the testimony of the respondent's Incharge Typing Pool in the establishment section, Mawauddin Ahmad, who had stated that under the instructions of the Administrative Officer, he had gone to the house of the appellant, during the period of the appellant's suspension, and had given him a titter asking him to appear in the office on 4th July. 19'75. That letter which is dated 2nd July, 1975, had been produced by witness Mawauddin Ahmad. The witness had given evidence against the appellant in the domestic enquiry and further he is an employee of the respondent, working in the Establishment Section. I thus see no reason to doubt his testimony. His testimony indicates that uptil 2nd July, 1975 the appellant was in the service of the respondent, though under suspension, and was required to attend the office on 4th July, 1975. He could not have been required to attend the office of the respondent until and unless he continued to remain as an employee of the respon dent. The dismissal order, dated 7th April. 1975, thus appears to me to be a suspicious document on which no reliance can be placed. In any case, it was not duly served upon the appellant. Since, according to the appellant, it was for the first time from the respondent's letter, dated 28th January, 1976, that he became aware that he had been dismissed from service, the grievance notice, dated 12th February, 1976, and the application under section 25‑A of the Industrial Relations Ordinance, 1969, dated 9th March, 1976, appear to me to be well in time.

7. As regards the contention of the respondent that the appellant was working m the Head Office, which should be considered to be a separate establishment from the Mills, and in view of the fact, that less than 20 persons were employed in the Head Office, the provisions of the Standing Orders would not be applicable to the employees of the respon dent, I find no substance therein and am in respectful agreement with the decision of this Tribunal in the case of Abdul Rahim v. Congothene Chemical Industries Ltd., Karachi (P L J 1977 Tr. C (Lah.) 96). In that case, it was held that even though the Had Office of the Factory was at Karachi while the Factory was at Wah, both the Head Office and the Factory are deemed to be one entity for the applicability of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

8. I also find no substance in the contention of the respondent that the appellant was serving in managerial/supervisory capacity. It has not been shown that he had any administrative, managerial or supervisory powers or that any employees were working under him. On the contrary, the evidence is to the effect that the appellant was required to visit the Factory market, etc., for the purposes of selecting the cotton for the factory. He was, thus, a skilled worker for the purposes of both the Industrial Relations Ordinance, 1969, and the Standing Orders Ordinance, 1968. In fact this position was not seriously contested by Mr. Masood Mirza.

9. It is the case of the respondent that the Second Show Cause Notice was sent to the appellant under certificate of Posting. I have already held that mere sending of a document under Certificate of Posting is not proof of the supply of that document to the workman. In Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal (1975 P L C 818) it was held that supply of Enquiry Officer's report and issue of a second show‑cause notice to afford opportunity to an employee to explain adverse findings of the Enquiry Officer are necessary, and if this is not done, re‑instatement of the worker is held to be proper. This view vas endorsed by the Supreme Court of Pakistan in its decision reported in 1976 L L C 613 while upholding the order of the re‑instatement, and it observed that workman should be furnished with a copy of the Enquiry report and also should be given an opportunity to show cause against the order of dismissal. As these twin requirements of supply of Enquiry Officer's report and service of a Second Show Cause Notice have not been; fulfilled in the instant case the dismissal order cannot be upheld and the order rejecting the reinstatement of the appellant in service is miscon ceived.

10. For the reasons stated by me above, I would order the re instatement in service of the appellant. As regards the payment of back benefits, there is no provision in the Industrial Relations Ordinance, 1969, or in the Standing Orders Ordinance, 1968, for the automatic payment of the back benefits to the workman, if he is ordered to be reinstated and his dismissal is held to be invalid. The dismissal, in the instant case, is being set aside on technical grounds. Moreover, the dismissal was effected in 1975. In the circumstances, I consider that the appellant be paid 40% of his back benefits.

11. Mr. Masood Mirza submitted that since the dismissal is being set aside on technical grounds, the respondent may be permitted to restart the proceedings from the stage of second show‑cause notice. I have given careful consideration to this request but I find myself unable to accede to it in view of the fact that already the appellant has suffered a great deal for being parted for four long years from his service during the whole of which period he had not been paid any wages by the respondent. Moreover, I find substance in the contention of the appellant, which is supported by the evidence of witness Mawauddin Ahmad, that the appellant was kept under suspension for several months. Such suspension is clearly unauthorized, as the maximum period of suspension, permissible is upto 4 days. The respondent, thus, by his own conduct, has made himself ineligible to legally claiming the right to continue the domestic enquiry from the stage of its illegality.

Appeal allowed.

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