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Appeal No. LHR‑502 of 1983, decided on 28th January, 1984.

‑‑Service of termination order‑Under postal certificate‑Carries no presumption of proof.

‑‑S. 25‑A‑Grievance notice‑Service of‑Through registered post‑Delivery to addressee presumed‑Non‑production of acknowledge ment due receipt immaterial.

‑‑ Ss. 2 (xxiv) & 25‑A‑Settlement‑Enforceable by grievance petition‑Contractor entering into a new contract with Mills on expiry of contract of previous contractor‑Agreement between new con tractor and Officer of Labour Department for employing workers of previous contractor‑Cannot be treated as a Settlement‑Settlement always between employer and collective bargaining agent or work men‑Grievance petition, held, cannot be brought on basis of such agreement.

Malik Bashir Ahmad for Appellant.

M. A. Hamid Awan for Respondents.

Date of hearing :24th January, 1984.

The eight appeals captioned above involve common questions of fact and law, therefore, are being disposed of together through this single judg ment, wherein Pirzada Said‑ul‑Amin & Brothers, Contractor Dawood Hercules will be described as the appellant and Muhammad Hanif, Ali Muhammad, Sooba Masih and Allah Ditta as the respondents.

2. Previously, Ayub & Company were the Contractors of Dawood Hercules for loading and unloading. Their term of contract expired on 31st May, 1980 and on 1st June, 1980 the appellant took the contract. The respondents were the employees of the previous contractor and after the appellant took contract they were on their applications re‑employed by them through the good wishes of the Assistant Director, Labour, who took writing P. C.‑10 from the appellant for the benefit of the respondents. The appellant terminated the services of the respondents on 21st June, 1980 on the ground that their work was not satisfactory. They challenged the orders of their termination in their grievance petitions, which have been accepted by .the learned lower Court. The appellant has challenged the direction of their re‑instatement in service in its appeals, whereas the respondents have in their appeals claimed back benefits.

3. Learned counsel for the appellant has argued that the grievance petitions were time‑barred as the order of termination is, dated 21st June, 1980, whereas the petitions were lodged on 29th March, 1981. The learned lower Court has held that the service of termination order was not proved, therefore, from the date of knowledge of the termination, the petitions were within time. Termination order is alleged to have been sent under postal certificate. This is no proof of service of letter. It only shows that the letter was posted. A letter sent under postal certificate is an ordinary letter and not a registered one, so if it has, for some reason, not been delivered, it does not come back. It is not delivered personally as no receipt is to be taken from the addressee and is either put in the private letter box of the addressee or is thrown at the place of addressee. So the finding of the learned lower Court is correct that the termination order was not served. It has been argued by the learned counsel for the appellant that the demand notice to re‑instate the respondents was given by the union on 4th September, 1980, so at least on this date the respondents had come to know of the order of termination of their services. As the demand notice was not given by the respondents, it does not show that on 4th September, 1980 they had come to know of the termination. There is no evidence that on the asking of the respondent, the union had raised the demand. So the petitions were within time.

4. The other point argued is that service of grievance notice was not proved as A/D receipt was not produced and only postal receipts were brought on the record. The argument too has no force. Seldom A/D receipts are delivered back. Since postal receipts have b nn produced, it shows that grievance notices were sent. Copies of the grievance notices bear the address of the appellant, which is according to the one given in the grievance petitions and the memo. of appeals. P. W.‑2 said that he had sent notice and its copy is P. C./l. It means that the same address was written on the envelops containing the notices which is given in the copy P. C./1 of the notice. It is, therefore, presumed that the notice was delivered. The oral statement of the respondent that it was not received was not sufficient to rebut the presumption.

5. It has been argued by the learned counsel for the respondents that the new contractor i.e. the appellant was the successor of the previous one and stepped into his shoes, so he was bound by former's liabilities. He concludes that the respondents continued to be in service. I do not find any force in this argument. The appellant is not the successor of the previous contractor as he did neither succeed to nor purchased any rights of the letter. On the completion of the term of contract, the previous contractor ceased to have any right. Suppose if the work of loading and unloading had not been given on further contract by Messrs Dawood Hercules on the termination of the previous contract and they had taken the work into their own hands, could the respondent continue to be in service The answer must obviously be in the negative. The respondents were employed by the previous contrac tor and on the termination of the term of the contract, their services came to an end and the appellant was not bound to continue the service of the respondents. The other argument is that the appellant executed P. C./10 and is bound by it. According to the learned counsel, this document is a settlement. I do not find any force in this argument as well. A settlement is always between the management of the establishment and the C. B. A. or the workmen. But P. C./10 is signed by the Assistant Director, Labour Welfare and the appellant. The Assistant Director is not any office holder of a C. B. A. So P. C./ 10 is not a settlement as defined in section 2 (xxiv) of the Industrial Relations Ordinance, 1969 but is a simple agreement be tween the appellant and the Assistant Director and on the basis of it no application under section 25‑A could be brought in the Labour Courts. The learned lower Court has wrongly held this document as a settlement. Even if P. C./10 is held to be a settlement, it does not advance the case of the respondents. It provides that the respondents would be given new employ ment. It is thus clear that the respondents were agreed by this document to be re‑employed. Clause 6 of this document further provides that the workers who were the permanent employees of the previous contractor would be employed against permanent posts. Even in ordinary civil Courts the respondents may not succeed because it is doubtful if this agreement is with consideration.

6. It has also been argued that no new appointment letter was issued, therefore, the previous service continued. I do not find any force. Admittedly, the respondents made applications for appointment If they had been continuing in service, they would not have applied for service. No such point was raised in the lower Court and as the appointment was not challenged, so the appointment letters were not produced. Needless to say that on admitted points no evidence is to be produced.

7. Last argument is that no termination letter was given. This is true that service of letter of termination was not proved as observed supra but requirement of Standing Order 12(3) is that by a written order giving explicit reasons, the services can be legally terminated. It does not say that the order be served within a particular period. The termination order is Exh. R-3 which shows that the services were terminated by means of a written order.

8. As a result of the observations made above, the appeals of the appellant are accepted and setting aside the decision of the learned lower Court, the grievance petitions of the respondents are dismissed. As the very orders of re-instatement have been set aside, no question of allowing back benefits arises and thus the appeals of the respondents for back benefits are dismissed.

A.E.

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