2016 PLP 267 (PLC)

ALI SAIN DINO METLO, MEMBER.

The appellant has challenged order dated 21.11.2011 of the Sindh Labour Court No.I, Karachi, directing the appellant to change respondent's date of birth from 07.11.1955 to 01.01.1958.

2. Briefly, the facts are that on 11.11.1978 the appellant appointed the respondent as Khalasi. On obtaining driving license on 27.05.1979, he was appointed as driver.

3. At the time of his medical examination on 07.11.1978, the respondent declared his age as 23 years and on the basis of such declaration, the Medical Officer worked out the date of his birth as 07.11.1955 which was mentioned in the record of his service, including the letter of his appointment. In his application dated 25.11.1978 for the issuance of service identity card and in his application for issuance of driving license, he mentioned his age as 23 years. In his application dated 17.03.1987 for membership of Workers Provident Fund, he declared the date of his birth as 07.11.1955. All these documents bear photographs and signatures of the respondent.

4. On 15.10.2009 i.e. after more than 30 years of his joining the service, the respondent, after sending grievance notice to the appellant, filed grievance application No.198/2009 renumbered as 83/2011 before the Labour Court for directing the appellant to change his date of birth and on 21.11.2011 the Labour Court issued the direction.

5. The respondent repeatedly and consistently declared and accepted his date of birth as 07.11.1955 and his belated contention that he had declared the year of his birth as 1958 is an afterthought and cannot be accepted. His contention that he came to know about his alleged wrong date of birth for the first time when he received his service identity card dated 22.01.2005, is also not correct. He did not produce his previous service identity cards, obviously because their production would have belied him.

6. Learned counsel for the respondent heavily relied on respondent's birth certificate showing that he was born on 01.01.1958. The certificate is of no value as the date of birth was reported to the union council on 09.07.2009 i.e. after more than 51 years of his birth. The entry kept in the record of the union council cannot be treated as entry made in due course of the performance of official functions. It is a manipulated entry.

7. As regards respondent's date of birth mentioned in his CNIC card issued on 16.01.2009, there is no basis for the mention of such date. Even the entry in the union council record was made afterwards.

8. Learned counsel for the respondent also relied on the old National Identity Card of the respondent issued on 27.03.1976 showing his age as 18 years. This is also not based upon any record and appears to have been mentioned on respondent's own declaration without mentioning date and month of his birth.

9. Learned counsel for the respondent argued that there was no reason for the respondent to give his wrong age at the time of getting his National Identity Card. There can also be no reason for him to give wrong age at the time of getting appointment. It appears that he was not sure about the date of his birth and was declaring his age by guess. Except for his own declarations, there is no authentic proof about respondent's date of birth.

10. The practice on the part of employees to apply for changing their date of birth near the end of their career has increased. The Hon'ble Supreme Court of Pakistan has deprecated such practice in the cases of Dr. Shamim Waheed [2008 PLC (CS) 192], Dr. Aslam Baloch (2014 SCMR 1723) and Mehar Khan (1988 SCMR 613). In all the cases salaries paid to the employees for the period they performed duty beyond the date of their retirements, even on the strength of interim order of a Court, was directed to be recovered from them. In Qamaruddin's case (2007 SCMR 66), the practice was directed to be 'discouraged and effectively curbed'.

11. Learned counsel for the respondent argued that for government employees, their rules prohibited change in their date of birth; whereas for nongovernmental employees there are no statutory rules prohibiting the change and they can seek change in their date of birth at any time. In support of his contention he cited the case of Caltex Oil Pakistan Limited v. Abdul Mateen, reported in 1995 PLC

280. The contention, being against the spirit of the judgments of the Hon'ble Supreme Court, cannot be accepted. In the case of Shahid Ali v. Oil and Gas Development Company Limited [2015 PLC (C.S.) 266 Supreme Court] an employee of the company was not allowed to change date of his birth, inspite of the fact that there was no statutory rule prohibiting the same.

12. The statutory limit of time for redressal of a worker's grievance is provided under section 34 of the Sindh Industrial Relations Act, 2013. It requires that grievance notice shall be given within three months of the date on which the cause of grievance arises and a worker can take the matter to the Labour Court within 60 days from communication of employer decision or within 60 days from expiry of 15 days after bringing the grievance to the notice of the employer.

13. In presences of the express statutory limit of time for the redressal of grievance, it cannot be said that a worker can get the date of his birth changed at any time without any limit.

14. In the present case, the respondent had himself repeatedly and consistently given and confirmed his date of birth entered in the record of his service. His claim that he had given some other date is an afterthought on his part. Even according to his factually incorrect claim that he came to know about the alleged wrong date of his birth when he received his service identity card issued to him on 22.01.2005, the grievance notice given by him after more than 4-1/2 years is hopelessly time barred. The respondent has neither given any explanation nor asked for condonation of delay and nor the Labour Court has condone it on any ground. The Labour Court, under a misconception, erred to hold that the respondent could ask for changing date of his birth at any time and erroneously directed the appellant to change his date of birth. Accordingly, the appeal is allowed and the order of the Labour Court is set aside. The respondent's grievance application stands dismissed. HBT/32/SLT Appeal allowed.