1991 PLP 720 (PLC(CS))

Dilawar Hussain for Appellants. Rana Mahmood Ali Khan, Representative for Respondent. Date of hearing: 16th September, 1990. This is an appeal against the order, dated 22-2-1990, passed by the learned Presiding Officer, Sindh Labour Court No. VI at Hyderabad whereby grievance petition of the appellant was allowed

2. I have heard Mr. Dilawar Hussain, learned counsel for the appellant and Mr. Rana Mahmood Ali Khan, learned representative for the respondent and have also gone through the record and proceedings of the case.

3. The appellant was first retired in 1983 on completion of twenty five years service but was ordered to be reinstated in service. He was again retired on 14-10-1986 on the ground that he had reached the age of superannuation. Aggrieved by this order, after serving grievance notice, he filed grievance petition before the learned Labour-Court.

4. The only dispute between the parties is about date and year of the birth of the respondent. Admittedly the service book of the respondent has not been produced by the appellants, who allege that it was taken away by the Union but there is no such proof or pleading. Thus the appellants have failed to produce `Service Book' of the respondent, wherein, according to the respondent, date of birth of the respondent had to be recorded. Admittedly the respondent was referred to the Civil Surgeon for determination of age, but no certificate was received from Civil Surgeon or produced before the Court. The appellant rely on the date of birth of the respondent as shown in the incumbency register which is 13-6-1925 but the appellant was retired on 14-10-1986 viz. after about 16 months after allegedly reaching the age of superannuation. It is contended by Mr. Rana Mahmood Ali Khan that this belated action of the appellant makes the entry of the incumbency register open to doubt. Apparently there was dispute between the parties as to the date of retirement of the respondent even before the order of retirement was passed. According to Identity Card the year of the birth of the respondent is shown to be 1928 and in pleadings he also claims that his year of birth is 1928. The appellant has primarily failed in its duty to keep the record of age of the employee. Under the circumstances before retirement it was necessary for the appellant to give show-cause notice to the respondent and determine his age by medical evidence or by some other authentic evidence. Appellants cannot be believed about the age of the respondent when they slept over for 16 months and then woke up to find that the respondent had reached age of superannuation 16 months back. This order is against the principle of natural justice and is not based on any authentic proof of the age of the respondent.

5. Mr. Dilawar Hussain's main contention is that the respondent failed to produce medical certificate which would have shown date of birth therefore, inference be drawn against him. Mr. Dilawar Hussain has not been able to point out as to where the respondent claimed to have passed Matriculation Examination. In the cross-examination he has stated that he is not Matriculate. Under the circumstances non-production of medical certificate would not raise any adverse inference against respondent. The order of retirement has therefore been rightly set aside by the learned Labour Court. As the respondent has also not been able to prove the exact date of his birth in the year 1928, therefore, in my opinion, he should be deemed to be retired on 14-10-1988 and is entitled to back benefits upto that date. With this modification the appeal is dismissed. M.Y.H./1747/Lb. S Appeal dismissed.