DUNLOP INDIA LTD Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN this application under Article 223 of the Constitution of India, the petitioner prays, inter alia, for a writ in the nature of Mandamus for quashing and/or setting aside the order No. 40 passed on December 7, 1988 by the 2nd Industrial Tribunal, West Bengal which is Annexure 0 to the writ petition.

(2.) FROM the affidavit of service filed in Court, it appears that the respondents have been served with the copy of this application, but no one appears for any of the respondents when the matter is taken up for final hearing. The only question involved in this writ petition is whether the endorsement of a registered postal cover "refused" can be rebutted by the addressee of the communication by merely verbally denying the same and whether such verbal denial unaccompanied by any other evidence would rebut the presumption that the letter in question was tendered to the intended addressee. In the instant case, the petitioner states in the writ petition that it had, issued a charge sheet against the respondent No. 2 in respect of certain charges recited therein. It is. stated in the petition that the charges were read over and explained to the workmen concerned and no reply having been given by the workmen concerned, a notice of enquiry was also intimated to the said workmen. As the workmen concerned refused to accept both the charge sheet and the notice of enquiry, the company, by way of abundant caution, issued the charge sheet and the notice of enquiry by registered post with acknowledgement due at the last know address of the workman concerned. Both the Envelopes were returned with the postal endorsement "refused". Ultimately a reference was made before the aforesaid Tribunal under Section 10 of the Industrial Disputes Act, 1947. The issue being the legality or otherwise of the termination of service of the petitioner pursuant to the enquiry held ex parte.

(3.) BEFORE the learned Tribunal the petitioner company in its written statement urged the learned Tribunal to take up the point of service of the charge sheet and the notice of enquiry first before going into the merits of the enquiry. The learned Tribunal by the order impugned in the unit petition inter alia, held that the enquiry was not fairly and properly held, inter alia. Inasmuch as neither the charge sheet nor the notice of enquiry was served on the workmen concerned. The learned Tribunal was pleased to hold that as the workmen concerned denied the service of either the charge sheet or the notice of enquiry on him. it was incumbent upon the petitioner to examine the postal peon concerned who purported to deliver the said registered covers to the workmen concerned. The Tribunal was of the opinion that unless such evidence of service is produced by the company, service is not proved in the face of denial of such service of the workmen. On that basis, the learned Tribunal was pleased to hold that the enquiry having been held ex parte, violated the principles of natural justice and as such was not fairly and squarely held. It is against this order that the petitioner has moved the instant writ petition. The only question involved in this writ petition is whether a bare denial of service of a notice in a case where a registered envelope comes back with the postal endorsement "refused", will amount to rebuttal of the presumption that the notice was duly served. Section 27 of the General Clauses Act 1897 provides as follows :