1989 PLP 103 (PLC)

Abdul Qadir Jami for the Worker. Date of hearing: 2nd February, 1988. DECISION These are two cross appeals filed against a common impugned order dated 12‑11‑1987, passed by the Sind Labour Court No. III Karachi, who had allowed the grievance petition of the worker directing his reinstatement in service with 50% back benefits. Appeal No. KAR‑426/1987 is filed by the management against the reinstatement of the worker, while Appeal No. KAR‑448/1987 has been filed by the worker for award of full back benefits. As facts and points involved in both these cross appeals in the impugned order are same and similar, therefore, I would also dispose of these both appeals by this single Decision.

2. Briefly stated the facts of the case are that the worker Umer Khattab claimed to have been employed as Machineman in the establishment of H. Nizam Din & Sons with effect from 15‑6‑1972 at the age of 40 years and had unblemished record and when he became the member of C.BA. Union, the management had pressurized him to leave the union activities and on his refusal to do so, he was served with a notice, dated 16‑6‑1986 that as he had crossed the age of 60 years, so, the Insurance Company had refused to give coverage, therefore, his services would be terminated with effect from 16‑7‑1987. The A worker further claimed that he did not attain the age of 60 years as per Card No. MM/5 issued by the management but, his actual age was 55 years and that his previous Identity Card was not correct, therefore, he got issued a fresh National Identity Card showing his correct age and despite this fact, the management did not allow him the duties and being aggrieved he filed his grievance petition before the learned Labour Court.

3. The management resisted the petition of the workman on the ground that as per entries in the previous National Identity Card the figures showed that the workman had reached the superannuation age of 60 years, therefore, he was correctly issued the termination order of his services. Hence, his application under section 25‑A, I.R.O., 1969 could not be maintained which was liable to be dismissed.

4. Both the parties filed their respective affidavits‑in‑evidence and they were duly cross‑examined. Thereafter the learned Labour Court has passed the impugned order hence the present two cross appeals.

5. I have heard Mr. Mahmood Abdul Ghani, the learned Advocate on behalf of the management of H. Nizam Din & Sons and Mr. Adbul Qadir Jami, the learned Advocate on behalf of worker Umar Khattab and have also carefully perused the record and proceedings of the case as well as the written arguments submitted by both the parties. At the very outset, I would observe here that in the present case, only one point is involved whether the workman had lawfully attained the superannuation age of 60 years resulting in his termination from service, or not. Mr. Mahmood A. Gham, the learned Advocate for the management has contended that there is no right guaranteed and secured to the workman by and or under any Law for the time being in force that he would continue to remain in employment of the management for an indefinite period, irrespective of his age. He contended that the workman had himself applied for the issuance of the National Identity Card on the prescribed form, mentioning his date of birth and when he had realized that according to the entries of his previous National Identity Card, he was to attain the age of 60 years, therefore, in 1986, he obtained second National Identity Card with a new date of birth showing less age than the earlier shown in the Card of 1974. He had pleaded that if the workman had realized any discrepancy in the date of birth in his two National Identity Cards, then he had to produce a documentary proof of School Leaving Certificate, birth certificate to be issued by a Civil Surgeon, to be examined before the learned Labour Court but, in the present case, none of these requirements were fulfilled. I see much force in these contentions of Mr. Mahmood Abdul Ghani, the learned Advocate for the management. In support of his contentions, he has referred me to the cases reported in P L D 1977 Kar. 168 at 172; 1980 P L C 716 at 717; 1980 P L C 767 at 768; 1980 P L C 1131, 1132; 1987 P L C 430, 435 & 436; P L D 1975 (Kar.) 279 at 287; 1973 P L C 351 at 353; 1985 P L C 275 at 276; Appeal No. SUK‑330/84; Appeal No. SUK‑105/85 and Appeal No. KAR‑107/85, decided on 25‑3‑1987 and 18‑12‑1986 respectively. All these authorities are very much applicable to the facts and circumstances of the present case. I would, therefore, hold that the workman had attained the age of superannuation of 60 years in view of his first National Identity Card and was rightly terminated from service. The workman had failed to adduce any other authoritative evidence and even a Medical Certificate by the Civil Surgeon and/or to produce him before the learned Labour Court to prove his correct age. The management of H. Nizam Din & Sons had done nothing wrong in terminating the services of workman Umer Khattab.

6. Mr. Abdul Oadir Jami, the learned Advocate on behalf of the workman has relied upon a decision of this Tribunal reported in 1987 P L C at page 102 in support of his pleadings that the retirement of the workman was not only premature, but, it was also illegal, therefore, the findings of the learned Labour Court in the impugned order are liable to be maintained. I see no force. The facts and circumstances of the reported case are not relevant with the facts and circumstances of the present case, hence, distinguishable and not applicable to the present case.

7. For the reasons discussed by me above I would set aside the impugned order and would allow the Appeal No. KAR‑426/1987 filed by the management of Messrs H. Nizam Din & Sons and would dismiss Appeal No. Kar‑448/19.87 filed by the workman, Umer Khattab. The result would be that the grievance petition' of the workman under section 25‑A, I.R.O., 1969 would stand dismissed. The amount of back benefits, already deposited by the appellant management before this Tribunal be immediately returned to the management of H. Nizam Din & Sons (Pvt.) Ltd, Karachi. A.E./1249/Lb. S Order accordingly.