1988 PLP 808 (PLC(CS))

‑‑Ss. 25‑A & 38(3)‑‑Reinstatement‑‑Back benefits‑‑Workman alleged to have filed false affidavit by mentioning wrong age‑‑Age mentioned in affidavit by reliance on medical report was not same as mentioned in Identity Card and Driving Licence‑‑Employer imposing penalty of dismissal from service on charge of deceiving employer‑‑Workman having relied on medical report, in circumstances, held, could not be said to have deceived employer and much reliance could not be placed on entries in Identity Card and Driving Licence as same were not recorded as a result of any inquiry‑‑Appellate Tribunal awarding reinstatement but disallowing back benefits due to peculiar circumstances of case inasmuch as both employer and workman by placing reliance upon different entries were not at fault. Amjad Hussain Syed for Appellant. Qamar‑ul‑Zaman for Respondent. Date of hearing: 21st March. 1988. This is an appeal directed against the decision dated 13‑12‑1987 recorded by the learned Presiding Officer, Punjab Labour Court No‑2, Lahore, whereby the grievance petition of the appellant for his reinstatement in service has been dismissed.

2. The facts are that the appellant was employed on work charged basis and when his services were being regularised, he was asked to produce his bio‑data, whereupon he filed an affidavit giving the date of his birth incorrectly. The falsity in the affidavit was detected when the record of identity card and driving licence of the appellant were inspected.

3. Learned counsel for the appellant has argued that since the learned Lower Court observed that the punishment of dismissal was not called for and a lenient view should have been taken, it should have substituted another kind of punishment in place of dismissal and it wrongly says that it has no jurisdiction in this respect. He makes reference to section 25‑A(5) of the Industrial Relations Ordinance, 1969, wherein it is provided that the Labour Courts shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. Change of punishment would not amount to passing a just and proper order. In cases where the misconduct is proved, it is the prerogative of the employer to prescribe any kind of punishment. If the employer decides not to retain in service an employee who has gone to the extent of filing a false affidavit, the Labour Courts have no jurisdiction to interfere.

4. However, on other grounds the decision of the learned lower Court is liable to be set aside. This is true that the date of birth given in the identity card and the driving licence is different from the one given by the appellant in his affidavit but there was a medical certificate R.I. on the record, in which the date of birth is the same as given by the appellant in his affidavit. If the appellant relied upon the medical report which went in his favour, it cannot be said that he intentionally and with a view to deceive his employer gave a false affidavit. If there had been no evidence supporting the date of birth given by the appellant in his affidavit, of course, it could have been said that he deceived the respondent in order to get his services regularised. Needless to say that in identity cards dates of birth or ages are given not after holding an inquiry, therefore, much reliance cannot be placed upon them. Likewise, while, issuing driving licence the Authority does not make any inquiry about the date of birth.

5. As a result, the appeal is accepted and setting aside the impugned decision of the learned lower Court, the appellant is directed to be reinstated in service. However, in the peculiar circumstances of the case I do not think that the appellant is entitled to back a benefits. The peculiar circumstances are that both the parties were not at fault. The respondent relied upon the age given in the driving licence and identity card whereas the appellant relied upon the age given in the medical certificate. A.E./520/Lb.P Appeal accepted