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Appeal No. LHR‑484 of 1984, decided on 30th May, 1985.

‑‑Ss. 25‑A a 38(3)‑‑Grievance petition‑‑Right lost by acquiescence‑‑Cannot be claimed‑‑Appellant taken in service as Lady Reporter but in appointment letter subsequently described as appointed as Reference Assistant on contract basis‑‑Services terminated after some time on grounds that post of Reference Assistant abolished‑‑Appellant claiming right .of service on continuing post of Lady Reporter‑‑Held: appellant lost her right on post of Lady Reporter by acquiescence in not challenging her oral termination from that post and her posting as Reference Assistant and not serving any grievance notice within 3 months of being posted as Reference Assistant‑‑Post of Lady Reporter, in circumstances, held, could not be claimed by appellant by serving notice only after abolition of post of Reference Assistant.

‑‑‑S. 25‑A‑‑Evidence Act (I of 1872), S. 114‑‑Grievance notice‑‑Service of‑‑Presumption of receipt by addressee employer‑‑Notice addressed to Employer Establishment sent through registered A.D.‑‑A.D. receipt bearing signatures of someone and seal of Post Office‑‑Postman received signatures of someone of the employees of Establishment, in circumstances, was presumed and service of notice, held, stood proved.

Malik Muhammad Asghar for Appellant.

Muhammad Assadullah Siddiqui for Respondent.

Date of hearing: 3rd April, 1985.

The decision, dated 5‑8‑1984 recorded by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore has been challenged whereby the grievance petition of the appellant for her reinstatement in service was dismissed. Cross‑objections have been filed on behalf of the respondent which are being disposed of together alongwith this appeal.

2. The appellant was in the beginning taken in service as a Lady Reporter w.e.f. 14‑8‑1981. On 24‑5‑1982 she was given appointment letter not as Lady Reporter but as Reference Assistant on contract basis for two years. The letter is Exh. P‑27. The appellant accepted the job under protest. It has been argued by the learned counsel for the appellant that since no letter of termination from the post of Lady Reporter was passed neither this is the case of the respondent that the said post was abolished the appellant continued as Lady Reporter. He has also said that the appellant did not apply for the post of Reference Assistant. Before the expiry of contractual period of two years, the service of the appellant was terminated from the post of Reference Assistant on the ground that the post had been abolished. In reality the appellant was in the beginning made to work as Lady Reporter and that she accepted the post of Reference Assistant under protest. The appellant by acquiescence lost her right over the post by not challenging her oral removal from the service and being posted as Reference Assistant. She should have served grievance notice within three months of being posted as Reference Assistant and if is wrong had not been remedied, she should have brought in grievance petition within 21 months of the service of notice if she had not received any reply or within 2 months of the receipt of the reply. She kept over the matter and served grievance notice after she was given notice termination from the post of Reference Assistant. She, therefore, could not claim the post of Lady Reporter. This argument of the learned counsel for the appellant is also without force that even if it be taken that the post of Reference Assistant was abolished, the appellant should have been posted as Lady Reporter instead of being terminated. Firstly, the reason is that it has not been shown that the posting of the appellant as Reference Assistant was by way of promotion from the post of Lady Reporter and secondly by not challenging her removal from the post of Lady Reporter within limitation she lost her right over the said post. So far as the question of abolition of the post of Reference Assistant is concerned, the order is Exh: R‑9. It has not been successfully challenged and it has not been shown that the post existed and someone else after termination of the appellant was working on this post.

3. It has also been argued that the appellant had accepted the post of Reference Assistant under duress. No doubt she stated so in the statement but the plea is not acceptable. If she had been under duress she would not have been allowed to record the note of protest. Since she had written the note of under protest, it is manifest that she was not under any duress.

4. So far as cross‑objections are concerned the first objection is that the finding of the learned lower Court with regard to the receipt of the grievance notice by the respondent is wrong. The argument has no force. The A/D receipt Exh. P.‑36/1 bears the signature of someone. The A/D receipt bears the seal of the post office, therefore, the presumption is that the postman received the signature of someone of employee of the respondent. The service of the grievance notice, therefore, stands amply proved. The other objection is the finding of the learned lower Court on the question of right, guaranteed by law is not sustainable. According to the claim of the appellant she had a right over the post of Lady Reporter on which she was made to work admittedly. Since the appointment letter was given for a different post she had a right under law to ask for the post against which she was posted and had been working. She had failed only on the ground that although she had written a note of protest but did not challenge the removal in time. The other objection is that since the allegation, was of unfair labour practice and in that respect an application was made to the N.I.R.C. the grievance petition for the same allegations was not competent. This argument too is not tenable. Not only on the basis of unfair labour practice removal from service has been challenged but there are other grounds also. So far unfair labour practice is concerned, she had brought a case before N.I.R.C. which was dismissed in default and the application for restoration was dismissed, therefore, no such case was pending in the N.I.R.C. when the appellant came to the Labour Court. If the N.I.R.C. had recorded the findings on merits and if had dismissed the case so far as unfair labour practice is concerned she could not have challenged the posting as Reference Assistant as there is bar in section 22(12) of Industrial Relations Ordinance, 1969. The last objection is also not well‑founded. The plea of the respondent was that no post of Lady Reporter had come into existence. This is proved from the record that the appellant had in reality been working on the said post, and that evidence had not been rebutted. The newspaper cuttings Exh.P.16, Exh.P.40, Exh.P.41, Exh.P.42, Exh.P.43, Exh.P.44, Exh.P.45, Exh.P.46. Exh.P.47, Exh.P.48 and Exh.P.49 show that the appellant had been working as Lady Reporter. In the said news reference is made to the appellant.

5. As a result of the observations made above. I find no force in the appeal and cross‑objections and dismiss the same.

A. E.

Appeal dismissed.

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