1995 PLP 520 (PLC)

(c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑ ‑‑‑‑S. 25‑A‑‑‑Grievance petition‑‑‑Domestic enquiry, held, ex parte‑‑‑Mode of service of notice‑‑‑Denial of notice‑‑‑Proof‑‑‑Where notice had been taken to employee and he had refused to receive same, such notice, held, was deemed to have been duly served and it would not be necessary for employer to effect service thereafter by some other mode‑‑‑Sending of two employees by Inquiry Officer to inform employee concerned of date of hearing would show that Inquiry Officer was keen to give full opportunity of hearing to such employee. (d) Industrial Relations Ordinance (XXIII of 1969)‑‑‑ ‑‑‑‑Ss. 25‑A & 38(3)‑‑‑Appellate jurisdiction, exercise of‑‑‑Where employee's conduct was contumacious by not joining inquiry, Labour Appellate Tribunal refused to set aside such employee's termination order in exercise of its appellate jurisdiction. Nazir Ahmad Niaz for Appellant. Malik Bashir Ahmad for Respondent. Date of hearing: 7th September, 1986. The decision dated 12‑5‑1986 recorded by the learned Presiding Officer, Punjab Labour Court No. 6, Rawalpindi has been challenged, whereby the grievance petition of the appellant for his reinstatement in service was dismissed.

2. The inquiry was held ex parte since the appellant had not appeared in response to the last inquiry notice. The learned representative of the appellant had discussed all the inquiry notices issued to the appellant but only the last inquiry notice is material which pertained to the last date of inquiry. No inquiry had been held on the previous dates, therefore, the notices sent for the said dates are immaterial. Inquiry was actually held on 31‑12‑1983. Exhs. R‑18 and R‑19 are the telegrams giving intimation that the inquiry would be held on 31‑12‑1983. They bear reports that the delivery was refused. Exh. R‑20 is the certificate of refusal issued by the postmaster. It has been argued by the learned Representative of the appellant that since the postmaster and the telegraph employee who had gone to deliver the telegrams had not been examined, the refusal to take delivery was not established and that in these circumstances notice of inquiry should have been issued by publication in the newspaper. On the face of it the argument is without any force. Service of telegram was effected by the employee concerned in performance of his official duties, therefore, presumption of correctness is attached which could be rebutted by some evidence which was not produced. The learned Representative has cited PLD 1973 SC 100 but the same is distinguishable because it is based upon sections 47, 67 and 145 of the Evidence Act and Order XIII, Rule 4 of Code of Civil Procedure. Both the Acts are not applicable to labour cases, therefore. strict compliance of the provisions of the said Acts is not necessary. It cannot be presumed that false certificates of refusal to receive the telegram was produced. If at all the appellant doubted the genuinely of the certificate of refusal to receive the telegram, he should have summoned the postmaster who had issued the certificate and it was not necessary for the respondent to do so when the report of refusal and certificate of refusal had been duly exhibited in evidence without any objection from the appellant. Likewise there is no force in the argument of the learned Representative that attempt should have been made by the respondent to get the notice of inquiry published in a newspaper. There is no provision of law that such notices should be published in the newspaper. Since the notice had been taken to the appellant and he had refused to receive the same, it was duly served and it was not necessary for the respondent to effect service thereafter by some other mode. So, the appellant himself was responsible for not joining the inquiry. Even on the date of inquiry two employees were sent to the appellant who told him that the inquiry was to be held on that date and that he should join the same but he refused. The learned Representative has in this respect argued that the Inquiry Officer did not say in his statement made before the learned lower Court that he had deputed Bagh Hussain and Security Officer to bring the appellant on 31‑12‑1983. The two witnesses mentioned above were examined during the inquiry and they deposed that on the asking of the Inquiry Officer they had gone to the appellant and asked him to join the inquiry but he refused. This shows that the respondent was keen to give full opportunity of hearing to the appellant but the latter showed his contumacy in not joining the inquiry.

3. No other point has been argued.

4. As a result, the appeal fails and is dismissed. AA./177/Lb.P Appeal dismissed.