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Appeal No. Lhr-297 of 1980, decided on 13th July, 1982.

---S. 25-A--Grievance notice sent by appellant to employer by registered post with acknowledgment due--Acknowledgment receipt not received back--Petition dismissed by Labour Court for failure to establish service--Postal receipt and copy of notice on record--No cogent evidence produced in rebuttal--Presumption arose in favour of appellant having succeeded in proving that he had served a grievance notice--Case remanded for decision on merits.

1980 P L C 4; 1980 P L C 754 and 1980 P L C 665 ref.

1982 P L C 863 distinguished.

Ahmad Kamal for Appellant.

Ahmad Fazal for Respondent.

Date of hearing: 4th July, 1982.

In this appeal the decision dated 7-4-1980 passed by the learned Presiding Officer, Punjab Labour. Court No. 2, Lahore has been challenged, whereby the grievance petition of the appellant for his reinstatement in service was dismissed on the ground that the service of grievance notice had not been-proved.

2. The appellant obtained sick leave for seven days on 1-4-1977 and, thereafter, made three or four applications for extension of leave upto 26-4-1977 when he reported for duty on 27-4-1977 he was told that his service had been terminated with effect from 1-4-1977 vide order dated 4-4-1977. The copy of the grievance notice is Exh. P. S. Postal receipt is Exh.P-9. A notice was sent by registered post with A/D, but since A / D receipt was not received back, it could not be tendered in evidence. The learned counsel for the appellant has argued that under-section 27 of the General Clauses Act, 1897, the presumption of service of the letter arises where the posting of the letter is proved.

On the other hand, the learned counsel for the respondent has argued that the actual service is to be proved. In the present case the appellant stated that he had sent grievance notice by registered post. He produced the postal receipt also and the copy of the grievance notice. This was a sufficient evidence to show that notice was actually posted on the address of the respondents. A/D receipt no doubt was not produced but it is said that the same had not been received back. Usually A/D receipts are not sent back by the post office and they are lost, but letters are delivered to the addressees. The learned trial Judge, therefore, could not have insisted upon the proof of the delivery of the letter. In 1980 P L C 4 it has been observed that since the posting of the notice had been proved, it could be presumed that the notices had been served. 1980 P L C 754 has also been cited, in which the notices sent had been received back with the remarks that the addressee was not residing at the address given on the letter. Ex parte proceedings were made and it was observed that they were not objectionable. It is apparent that notice was sent on the address which the party had given, but since it was reported that he was not residing there and had not given fresh address, therefore, it was held that the ex parte proceedings were justified. Likewise in 1980 P L C 665 it was held that since it was proved that notice had been posted at the correct address, the presumption was that it had reached the addressee. It is further observed that non-receipt of the notice due to the closure of the office of the management was not sufficient and the workman could not be penalized. Even under section 14 of the Evidence Act, the presumption arises that the letter, posting of which at the correct address had been proved, has reached the addressee. On the other hand, the learned counsel for the respondent has relied upon 1982 P L C 863 but the authority is distinguishable from the facts of the present case, inasmuch as in that case no postal receipt was produced, whereas in the present case postal receipt has brought on the record and the appellant deposed in his statement that he had sent the notice to the respondent by registered post. In cross--examination it was not enquired that wrong address was given. No doubt, witness examined on behalf of the respondent stated that no notice under section 25-A of the Industrial Relations Ordinance, 1969 was received, but this oral statement was not sufficient to rebut the presumption raised under section 27 of the General Clauses Act and section 120 of the Evidence Act when the postal receipt has been brought on the record and the statement of the appellant was that he had sent the notice by registered post, copy of which was Exh.P-8 and postal receipt Exh.P-9. Usually a clerk receives the correspondence coming by post and if he did not deliver the notice to the proper authority or did not take care of it, it does not mean that by the bare statement the presumption stands rebutted. No doubt the presumption is rebut-able but it can be rebutted by cogent and sufficient evidence. No receipt register was brought to show that in the dates in -which the notice is said to have been sent, there was entered no such notice. Rana Niaz Muhammad Khan (R.W.1) did not say that it was within his duties to receive the correspondence and notices coming through post. I, therefore, hold that the appellant succeeded in proving that he had served a grievance notice, copy of which is Exh.P.8. The learned trial Judge erred in holding that the appellant had failed to establish the service of grievance notice.

3. I, accordingly, accept the appeal and setting aside the impugned decision of the learned lower court, remand the case for decision on merits.

M. I.

Appeal accepted, case remanded.

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