1994 PLP 669 (PLC(CS))

2. The petitioner was employed as a Pump Operator with respondent since 19‑11‑1971. According to the rules of the respondent‑Mill the age of superannuation is 58 years but the same could be relaxed up to sixty years provided there was Annual Medical Examination wherein he was found to be physically fit.

3. The petitioner, whose date of birth on the record was 19‑11‑1927, was served with a notice on 17‑10‑1985 that his retirement was due on 20‑11‑1985. He had made a representation and as he was found to be in good health his services were extended by one year. Near about the end of the extended term the petitioner had made another representation for extension on the ground that he had to maintain a large family, and what is more he had to build his house. The Medical Examination showing a 'favourable report he earned extension by one year more. On completion of sixty years he was duly retired.

4. The petitioner had filed a petition before the Labour Court challenging his retirement which came to be dismissed. An appeal was brought to this Tribunal and came to be allowed with full back benefits. The decision, however, went on to say as follows:‑‑ "However the respondents are at liberty to institute proper enquiry to determine the age of the appellant and may refer him to Medical officer and if he is found to have attained the age of sixty years they are at liberty to retire him in accordance with rules." In the earlier part of the decision the order had expressly mentioned the Medical Officer to be the Medical Officer of the respondent‑Mill.

5. As a result the petitioner (respondent herein) came to be reinstated. Three letters had been sent to him by the appellants to appear before he CMH at Hyderabad. On his own showing he was well aware of these letters. The appellants had complained about the recalcitrant behaviour of the petitioner to this Tribunal and the fetter is on the file. The affidavit in evidence filed by the petitioner bears that out. He has given even the dates. He however states that he was present at the mill but he was not taken to the CMH at Hyderabad. All these evenings he would be waiting at the Mill and then return to his home. After these two misadventures he has the following to say in regard to date fixed on 11‑7‑1989. It reads as under:‑‑ "That on 11‑7‑1989, I reached the Mill Gate and I was taken to CMH, Hyderabad, under heavy security arrangements for determining my age. I had shown a certificate to the Doctors of the CMH issued to me by the Civil Suregon, Badin on 20‑12‑1986 (Exh. A/19) on record) wherein my age was already determined to be between 49 and 50 years. The doctors of CMH, on seeing the aforesaid certificate refused to determine my age, on the ground that the certificate issued by the Civil Surgeon, Badin, is the conclusive proof of the age, and cannot be disputed:"

6. All that speaks for itself and hardly needs any comments. He also admits that there was a domestic enquiry for the determination of his age, apart from this reference to the Medical Officer. He had the following to say in that context:‑ '"That I say the domestic enquiry alleged to have been conducted to determine my age, was merely a farce, and no document whatsoever was confronted to me. There was only one person present in the room and when I reached there, he asked me to sign the already prepared statement. I requested him to first read over the translation of the contents of the said statement in Sindhi language, to which he refused, then I refused to sign such statement, without first knowing its contents." All that was done in this enquiry was to look to the application made by the respondent for recruitment in service wherein he had mentioned his age. It bore his signature. The appellants had later sent this document to a handwriting expert and that was found to tally with his handwriting. Since the handwriting expert has not been examined I will leave it at that.

7. The sequence of the narration as furnished by the respondent himself clearly shows that he was not willing to appear before the CMH as directed by the Tribunal. With such brazen faced defiance on the part of the respondent, the learned Presiding Officer was hardly justified in referring him to the Medical Board constituted by the Civil Surgeon, Hyderabad. What is worse no doctor has been examined in support of the alleged opinion of the Board so that he could be tested in cross‑examination. The impugned order, under the circumstances, cannot be sustained.

8. In the result I will set aside the impugned order and allow the appeal. H.B.T./2327/Lb.S Appeal allowed.