IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.6760 of 2002 Date of decision:04.11.2009 The President, M/s Malke Co-operative Agricultural Service Society Limited, Malke, District Moga. ....Petitioner versus Jasbir Singh and another ...Respondents. CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. M.K.Garg, Advocate, for the petitioner. None for the respondent. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral) 1. The writ petition challenges the award of the Labour Court directing reinstatement with continuity of service. The order of termination followed resolution of the Society terminating the services of the workman for prolonged absence despite alleged notices to the workman. The admitted case of the workman was that he had been engaged as Salesman and was working since October, 1982 till the year, 1995, when, according to the management, he had stopped coming from 18.02.1995 and after registered notices, his services were terminated on 26.07.1995. Civil Writ Petition No.6760 of 2002 - 2 - 2. The workman issued a demand notice and sought a reference to the Labour Court for adjudication whether the termination was in accordance with law. Before the Labour Court, he gave evidence to the effect that he never remained absent and that he was actually attending to duty but he was not permitted to sign the attendance register. He attributed a motive for the management for such a course by stating that the Society was interested in employing another person after terminating his services and that in fact it did by employing a person by name Satpal Singh. In proof of his contention that the he (workman) had not absented himself, he adduced evidence to the effect that he had claimed TA during the relevant time when he was supposed to have been absented and they all had been entered in the books of the respondents. The workman had also denied that he had received any registered notices from the Society at any time. 3. The Labour Court that examined the rival contentions set out three reasons: (i) the T.A. Register had not been produced which admittedly the management had and the non-production was bound to evoke an adverse inference against the management; (ii) in the face of express denial of receipt of registered notices, the management had not produced proof of such service. The acknowledgment receipts themselves had not been produced and mere registration receipts will not prove service; and (iii) no enquiry had been conducted for the so-called unauthorized absence and the termination so effected without any enquiry was against the principles of natural justice. Civil Writ Petition No.6760 of 2002 - 3 - 4. The learned counsel adverting to the issue of non-receipt of registered letters would contend that there is a presumption available under Section 27 of the General Clauses Act that registered letters sent at the proper address shall be presumed to have been received by the addressee. In a matter of presumption, it shall be remembered that it merely raises an initial inference of a particular course of events to be true. The moment a workman steps into a witness-box and denies the receipt, the onus would shift on a person contending that there was a valid service to prove that the service had been effected. The learned counsel appearing for the petitioner refers to a decision in Sudesh Tikoo Versus Smt. Raj Vanshi-2005(1) RCR (Rent) 77, that drew as a matter of presumption the valid service of a registered notice. The learned counsel also refers me to a decision in Rais Ahmad Versus Special/Additional District Judge, Saharanpur-1997(2) RCR (Rent) 388, that dealt with the issue of presumption again as available to a case where notice had been sent to the correct address. In that case, the Allahabad High Court was dealing with the case of the signature which also found in the registered acknowledgment which the addressee was claiming as not his. There the Court said that it was unnecessary to examine the postman to prove the actual service. The case has to be taken as applying to the particular facts as exhibited and not laying down a general proposition that in all cases where registered letters are sent, service should be presumed, even in the face of express denial that there was valid service. There are decisions of the Hon'ble Supreme Court that give guidance to the issue as to how the presumption shall be Civil Writ Petition No.6760 of 2002 - 4 - evoked. Vide A.Rama Rao Versus Raghunath Patnaik- (2007) 9 SCC 521; C.C.Alavi Haji Versus Palapatty Muhammed-(2007) 6 SCC 555. The decision of the Hon'ble Supreme Court in Puwada Venkateswara Rao Versus Chiddanna Venkataramana-(1976) 2 SCC 409, has lamented about the state of affairs from the time when a presumption was statutorily incorporated in the General Clauses Act and as to how it was easily possible to fabricate even endorsement on registered letters in the recent times. This is not so much to suggest that there was any fabrication but to state a rule of evidence that if a denial of receipt of registered letters is made, the question of raising a presumption does not arise. Here what would displace an initial presumption is a positive proof of service. The management had not undertaken any such exercise to prove such service. Even a service through wife to such an event would not displace the requirement of notice. The reasoning of the Labour Court as regards the non-service of the registered notice was, therefore, perfectly justified. 5. The learned counsel admits that there are no particular rules which contemplates an automatic termination of services by unauthorized absence at best, it was a misconduct and a misconduct to result in retrenchment will have to be within the four corners of law. The termination of service which was done by a resolution of the Society without any attempt at holding an enquiry does not conform to the principles of natural justice. In this case, the defect is far more fundamental, when the workman had been denying that he was absent and was contending that the management was deliberately refusing him Civil Writ Petition No.6760 of 2002 - 5 - to sign in the attendance register and gave evidence about the presence of documents in the hands of the management that would prove positively his attendance. The Labour Court was justified in drawing an adverse inference for non-production of the record such as, TA Register, which the workman claimed that he had signed during the relevant period and claimed travelling allowance. 6. The reasoning adopted by the Labour Court on every one of the contentions which are raised by the management are perfectly in order and there is no scope for interference by this Court. The writ petition is, accordingly, dismissed. No costs. (K.KANNAN) 04.11.2009 JUDGE sanjeev