1984 PLP 1271 (PLC(CS))

Sh. Afzal Ahmad Qureshi for Appellant. H. R. Haider for Respondent. Date of hearing: 4th April, 1984. This is an appeal preferred against the decision, dated 5th May, 1983 passed by the learned Presiding Officer, Punjab Labour Court No. 8 Bahawalpur, whereby the respondent was directed to be re‑instated in service with back benefits.

2. The respondent was employed on 3rd February, 1972 as an opera tor to drive Machine No. K‑

26. The machine was overhauled and thereafter when it had travelled for only 1279 hours, its crank shaft gave way. The appellant charge‑sheeted the respondent and removed him from service after holding an enquiry.

3. It has been argued by the learned counsel for the appellant that since the postman was not examined, the service of grievance notice was not proved. His contention is that production of postal receipt and copy of grievance notice was not sufficient. The argument is not tenable. If it is proved that a letter bearing correct address had been posted, the presumption is that it was delivered to the addressee if it has not come back. The presumption being reputable, the other party may produce cogent evidence to rebut it. The postman may be examined by the addressee of the letter to state that he did not deliver it. Since the copy of the grievance notice Exh. P‑9 and postal receipt Exh. P‑10 were pro duced and the respondent stated on oath that he had sent the notice, the service of grievance notice was proved. The address given on the copy of the notice Exh. P. 9 and the postal receipt Exh. P. 10 is not said to be incorrect. So, the presumption arises that the grievance notice was given. No postman of the Ilaqa was examined by the appellant to depose that the registered letter was not delivered to the addressee. None of the witnesses examined by the appellant even orally said that no grievance notice was received. The learned lower Court thus rightly held that the grievance notice was served.

4. No evidence was produced during the enquiry on the point that due to negligent working the crank shaft of machine K‑26 was broken. Only this much was stated that the respondent had taken away used big and bearings from the workshop. No evidence is on the enquiry file that the used big and bearings were actually fitted in the machine. Before the learned lower Court evidence was produced. Ch. Abdul Ghani (R. W.‑3) said that he had told the respondent that he would himself get the vehicle repaired but be in disregard of his order himself started the pro ceedings of repairs, which resulted in more damage to the machine. He did not say that actually the machine was repaired at the instance of the respondent. The case is to be proved during the enquiry before taking action and not after that. So, it was not proved that due to any fault of the respondent the machine's crank shaft was broken.

5. The enquiry too was not made properly. No opportunity of cross examination was given to the respondent. A questionnaire was prepared and answers of the questions were taken from the witnesses. . No oppor tunity of defence was given to the respondent.

6. However, there is no force in this argument of the learned counsel for the respondent that since after the decision of the learned lower Court,, duty and back benefits have been given to the respondent, the appeal does not lie. Since there was no stay order, so if the order of the learned lower, Court bad not been complied with, the appellant would have committed contempt of Court.

7. This argument is also not tenable that the appeal was made by an unauthorised person. The memo of appeal is signed by Mr. Afzal Ahmad Qureshi, Advocate. He was appointed under the order of the Solicitor. On the move of the appellant the Solicitor bad appointed Mr Afzal Ahmad Qureshi, Advocate.

8. As la result, the appeal is dismissed having no substance. A. B. Appeal dismissed