2018 PLP 25 (PLC N)

Ss. 34 & 48

Date of birth

Alteration

Scope

Grievance application

Appellant at the time of his appointment had declared his age as 28 years, and on the basis of such declaration, medical officer worked out his date of birth as 01-11-1948, which was mentioned in the record of his service

Appellant, after more than 28 years of his joining the service, did his matric and mentioned his date of birth in matric certificate as 28.11.1956

Appellant moved application for changing his date of birth, which was dismissed by the employer

Appellant filed grievance application for directing the employer to change his date of birth from 01-11-1948 to 28-11-1956

Validity

Appellant repeatedly and consistently declared and accepted his date of birth as 01-11-1948

Appellant's belated contention that his date of birth was 28-11-1956 on the basis of matric certificate was an afterthought, which could not be accepted

Matric certificate, heavily relied upon by the Appellant, showed date of birth as 28-11-1956, which was of no value as he had filed civil suit for declaring his date of birth as 28-11-1956, which was dismissed

Said findings of the trial court was upheld by the appellate court

Appellant did not mention anything in the grievance petition about dismissal of his civil suit and appeal and in this way, he had attempted to get an order in his favour by practicing fraud and misrepresentation

Appeal was dismissed in circumstances. [Paras. 11 & 12 of the judgment]

Ss. 34 & 48

Date of birth

Alteration

Scope

Grievance application

Decree of Civil Court of competent jurisdiction with regard to age of the workman

Binding effect

Scope

Appellant had alleged that judgment of civil court and the appellate court were not binding on the Labour Court as same were without jurisdiction

Validity

Appellant had not taken said plea in his grievance application

Appellant had suppressed the very fact of having gone to civil court for declaration of his age

Labour Court having limited jurisdiction, could not ignore judgment of the civil court which had plenary jurisdiction

Appellant having himself invoked jurisdiction of the civil court, was estopped from challenging its jurisdiction

Appeal was, therefore, dismissed in circumstances. [Para. 13 of the judgment] Allah Ditta v. Ghulam Muhammad 2008 SCMR 1021 and Nazir Ahmed Khan Lughmani v. Member, Senior Land Commission PLD 1994 Pesh. 74 rel.

Ss. 34 & 48

Date of birth

Alteration

Scope

Grievance application

Time barred claim

Effect

Appellant at the time of his appointment in 1976, declared his age as 28 years, and on the basis of such declaration medical officer worked out his date of birth as 01-11-1948, which was mentioned in the record of his service

Appellant, did not raise any objection to the age so determined and tried to get it changed after passing matriculation in 2004

After having failed to establish his claim in civil suit, he had filed application in the Labour Court after 34 years of his appointment and 15 months of his retirement

Appellant did not give any explanation for the said delay or making any request for condoning the delay

Appeal being time barred, was dismissed. [Para. 14 of the judgment] Dr. Shamim Waheed's case 2008 PLC (C.S.) 192; Dr. Muhammad Aslam Baloch's case 2014 SCMR 1723; Mehr Khan's case 1998 SCMR 613; Qamuruddin's case 2007 SCMR 66 and Shahid Ahmed's case 2015 PLC (C.S.) 267 rel. JUSTICE (R) ALI SAIN DINO METLO, MEMBER.

The appellant has challenged order, dated 23rd October, 2012, of the Sindh Labour Court No.05, Karachi, dismissing his grievance application No.14 of 2010, for changing his date of birth from 1st November, 1948 to 28th November, 1956 and consequently his date of retirement from 31st October, 2008 to 27th November, 2016.

2. Briefly, the facts are that, on 16th July, 1969, the appellant joined Pakistan Army, as sepoy, left it in 1973 and joined the respondents, as messenger, on 01st November, 1976 on the quota of ex-servicemen. At the time of joining service, he declared his age as 28 years and on examination the Medical Officer also determined his age as 28 years. Accordingly, in his service record his date of birth was mentioned as 01st November, 1948. On 13th March, 1986, his designation was changed as driver.

3. In the year 2004, he did his matric and the certificate mentioned his date of birth as 28th November, 1956. In the same year he applied to the respondents for changing the date of his birth, but they refused. On 0lst February, 2008, he filed a Civil Suit No.76 of 2008, for declaring his date of birth as 28th November 1956, instead of 01st November, 1948 or 09th March, 1956, as was mentioned in a draft seniority list, and prayed for restraining the respondents from retiring him on 31st October, 2008. After a contested trial, the trial court (2nd Civil Judge, Karachi South) by its judgment, dated 28th October, 2008, dismissed the suit, holding that the appellant had failed to prove his contention about the date of his birth. The findings of the trial court were upheld by the appellate court (3rd Additional District Judge, Karachi South) and his Appeal No.124 of 2008, was dismissed on 25th July, 2009.

4. On 06th February 2010, the appellant filed Application No.14 of 2010, in the labour court for changing his date of birth on the same grounds, completely suppressing the facts about filing Suit No.76 of 2008 and Appeal No.124 of 2008 and their dismissal by the concerned courts.

5. In their objections, the respondents contended that in his application for appointment as messenger, the appellant mentioned his age as 28 years and also mentioned that he was ex-servicemen with experience of four years. At the time of his medical examination also, he had declared his age as 28 years. Regarding the draft seniority list mentioning his date of birth as 09th March, 1956, they contended that it was a mistake which was corrected by cancelling the list, vide circular dated 11th January, 1989, and fresh seniority list mentioning his correct date of birth as 1st November 1948, was issued on 28th May, 1989. They produced several documents, including appellant's application, dated 28th October, 1976 and for appointment as messenger, medical certificate about his fitness for appointment, dated 02nd November, 1976 and judgments of the civil court and of the district court dismissing the civil suit and the civil appeal.

6. The appellant examined himself; while the respondents examined their Deputy Manager HR, Syed Estishamul Haq. The labour court dismissed the application, holding that it was time-barred and the appellant had failed to prove his claim regarding the date of his birth.

7. This tribunal, under its decision, dated 25th March, 2014, while upholding findings of the labour court, allowed the appeal and directed the respondents to reinstate the appellant in service with all back benefits and to allow him to serve till 09th March, 2016.

8. On respondents' Constitutional Petition No.1715 of 2014, the Hon'ble High Court of Sindh, under its order, dated 10th March, 2016, pointed out the anomaly in the order of this tribunal and directed to decide the appeal afresh.

9. In his cross-examination, the appellant admitted his application for appointment and the certificate of his fitness, both bearing his signatures, showing his age, at that time, as 28 years. He admitted that he did not raise any objection to the date of his birth mentioned in his service record and challenged it in the civil suit and the civil appeal, which were dismissed.

10. According to the appellant, he had joined army in 1969 and left it in 1973. This very fact negates his claim of date of birth in 1956, as it is not believable that he joined army at the age of 13 years.

11. At the time of getting employment in 1976, the appellant gave his age as 28 years, which was accepted by the respondents. After passing matric in 2004, he applied for changing his date of birth from 1st November, 1948 to 28th November, 1956 i.e. the date mentioned in his matric certificate. The respondents refused to change the date, on which he filed civil suit which was dismissed. The civil court found that the appellant had failed to prove his claim that he was born on 28th November 1956, as all the documents he produced in support of his claim, were prepared after joining the service and were not reliable. The findings attained finality, as his appeal was also dismissed.

12. In his application in the labour court, the appellant did not mention anything about dismissal of his suit and appeal and in this way he attempted to get an order in his favour by practicing fraud and misrepresentation.