1991 PLP 289 (PLC)

Shaikh Abdul Ghani for Respondents. Date of hearing: 25th March, 1990. This is an appeal against the order of the learned Presiding Officer, Sindh Labour Court No.VII at Sukkur, dated 30-5-1989, whereby the grievance petition filed by the appellant was dismissed.

2. Admittedly the appellant was working as workman employed by the respondent. He was given notice of retirement dated 31-1-1987, whereby he was granted two months' leave preparatory to retirement effective from 1-2-1987 to 31-3-1987. Aggrieved by this retirement the appellant, after service of grievance notice, filed grievance petition before the learned Labour Court.

3. I have heard Mr. Nizamuddin Baloch, learned Advocate respondent and have also gone through the record and proceedings of the case.

4. The first objection raised by Mr. Shaikh Abdul Ghani is the grievance notice was time-barred. Admittedly the appellant filed appeal against the order of retirement to the Department which is not yet decided. He has produced one letter, dated 21-10-1987 whereby he was directed to appear for personal hearing before the Authority on 27-10-1987. The appellant alleges that he appeared but was not heard. The appellant's appeal was to be heard on 27-10-1987 but no decision was taken. The cause of action, therefore, would accrue to the respondent on 27-10-1987 either because of his alleged non-appearance or for other reason the respondent has either dismissed the appeal or did not proceed to decide it. The grievance notice was admittedly given on 16-1-1988 therefore it is within three months from 27-10-1987 and cannot be considered as time-barred.

5. The dispute between the parties appears to be over the date of birth of the appellant. Admittedly he joined the service in 1963 and admittedly he did not produce at that time any medical certificate or birth certificate with regard to his age. Mr. Shaikh Abdul Ghani states that the date of birth as entered into the record of SRTC is 21-1-1928.Me has also relied on another letter, which is reply to the grievance notice in which the appellant was informed by Secretary SRTC that his date of birth was 20-1-1928. Mr. Nizamuddin Baloch contends that this record was not produced before the learned Labour Court and further that this date of birth was not given in the written statement or counter-affidavit and that it is written in the record in a different ink. Even if this date is accepted, the appellant would have been due to retire on 21-1-1988 whereas he has been retired on 31-3-1987 which apparently is premature retirement. The respondents rely upon the certificate of their Departmental Doctor which shows that the appellant gave his age 58 years but according to appearance his age was 60 years. This certificate is dated 16-1-1987. This certificate is based only on external checkup and is not based on ossification test on X-Ray reports. Whereas the appellant has filed a copy of the School Leaving Certificate which shows his date of birth as 1-3-1937. Mr. Shaikh Abdul Ghani contends that it is manipulated Certificate and the Author of Certificate has not been examined. Appellant has also submitted Medical Certificate of R.M.O. Sukkur, dated 8-2-1987 according to which his age was above 55 years. Mr. Shaikh Abdul Ghani contends that this certificate does not bear signature of the appellant and the doctor has also not been examined. It appears that the dispute as to the date of birth of appellant was not resolved by the respondent, after due notice to the appellant, and after due enquiry. However order of retirement appears to be arbitrary and is not even in confirmity with the age of the appellant entered in the record of the respondents.

6. As such appeal is allowed. Impugned order and order of retirement is set aside. The appellant is ordered to be reinstated with full back benefits. The respondent would be at liberty to retire the appellant after due notice and after due enquiry as to the age of appellant. The order to be implemented within one month. M.Y.H./1673/Lb.S Appeal allowed.