1990 PLP 87 (PLC)

Muhammad Ibrahim Soomro for Respondent. Date of hearing: 12th September. 1989. Mr. Abdul Ghani Khan, Advocate for the appellant and Mr. Muhammad Ibrahim Soomro, Advocate for the respondents.

2. This is an appeal against the order of the learned Labour Court No. VI at Hyderabad, dated 18‑2‑1 087, whereby the grievance petition of the appellant was dismissed.

3. Brief facts of the case are that the appellant was initially working at work charge staff of the respondent, but, his services were regularised in 1972, when his service book was also prepared. In the Service Book, on the statement of the appellant, his year of birth was entered as 1933. It also appears that in 1973, the appellant was referred to Civil Surgeon for certifying his age, who v1de Annexure 'H', dated 23‑5‑1973, gave the opinion that from the appearance the age of the appellant was between 45 and 50 years. It also appears that thereafter the age of the appellant was corrected in the Service Book to be 23‑9‑1925. He was retired from service on 22‑9‑1985, but, subsequently, by a Corrigendum he was considered to be on duty up to 22‑11‑1985. The appellant being aggrieved by this decision, after service of the grievance notice, filed his grievance petition.

4. The facts of the case more or less are admitted. According to the appellant, the date of birth in the Service Book was subsequently changed without notice. There is no evidence to show that any notice was issued or he was heard when the age was changed. This change of age appears to be based on the Certificate of Civil Surgeon which was also not based on the scientific tests, but the opinion of the Civil Surgeon was based on the appearance of the appellant The Civil Surgeon has given a margin of 5 years in age of appellant. According to this certificate, the year of birth of the appellant could be anywhere between 1923 to 1928.

5. Mr. Muhammad Ibrahim Soomro, the learned Advocate contends that the appellant himself had brought the Medical Certificate, therefore, he would be deemed to have the notice. In his support he has relied upon the decision of this Tribunal reported in 1988 P L C

90. However, that case is distinguishable as in that case the appellant had neither declared his age nor produced anything in evidence. 1n the instant case, the appellant had declared his age at the time of entering into service and when his service book was prepared. Besides, at the most he could he said to have the knowledge of the Medical Certificate which gave a margin of 5 years in his age. 11 is not understood when there was no specific evidence on the record, how the date of birth of the appellant was fixed exactly as 23‑9‑1925. Mr. Muhammad Ibrahim Soomro contends that it was the discretion of the employer. Even, if it was the discretion of the employer, it was at least necessary for him to issue notice for hearing to the appellant for which there A is no evidence. This change in the age of the appellant which adversely had affected his right was in violation of principles of natural justice.

6. The next contention of Mr. Ghani is that no formal order, in writing. was passed with regard to the retirement of the appellant. No formal order has been produced by the respondents before the learned Labour Court. However, reliance is placed on the admission of the appellant in paragraph G of his grievance application wherein he had stated that some employees of the respondents had obtained his signatures on some papers and that he was orally told that he was retired, but, was not given any letter. Even, this admission is with regard to his alleged retirement on 22‑9‑1985. As pointed above, admittedly he was deemed to be in service up to 22‑11‑1985, and thereafter neither there is any evidence nor admission that any other order of retirement was passed. Mere obtaining signatures of the appellant an order, even, if it was a retirement order, II would not be considered as sufficient compliance of Standing Order 12 (3). As such order is not justifiable and the workman has a right to come to the Labour Court against this order, unless, he is supplied with a copy of the order, he would be deemed to have been deprived of the right to come to the Labour Court.

7. For the aforesaid reasons, in my opinion, the action of the respondents retiring the appellant was arbitrary, against the principles of natural justice and in violation of Standing Order 12 (3) and, therefore, was not sustainable. I accordingly allow the appeal and set aside the impugned order and direct the reinstatement of the appellant with full back benefits within one month. However, the respondents are not precluded from determining the age of retirement of the appellant in accordance with Rules or principles of natural justice keeping in view the observations made by this Tribunal. H.B.T./1507/Lb. S Appeal allowed.