1988 PLP 135 (PLC)

This is the case of Security Guard, in the employment of Karachi Transport Corporation who was retired from the employment from 11‑8‑1986 by letter of 11th August, 1986.

2. This order was passed by the KTC officials that Mr. Akber Khan has attained the age of superannuation and therefore, he should collect the dues, to give the final clearance certificate.

3. Mr. Akber Khan has contested the case on two grounds; firstly his retirement was illegal, and secondly he was doing the manual work opening the gates, loading and unloading spare parts and visiting the entire depot throughout night round. 4, At the time of this application 'before the Labour Court on 29‑11‑1986, he has shown the age of 50 years with sound health and basing the case on his national identity card that his actual date of birth is the year 1928.

5. The respondent has also referred the order of the Secretary Road Transport Corporation referring to Regulation No.19 on the Road Transport Corporation Workers Rules 1965. In this context it is provided that all the workers are 'to retire at the age of 55 years in the ordinary course. Further it qualifies that the appointing authority shall have the discretion to extend the period of service upto the age of 60 years and even the Road Transport Corporation shall have the powers to extend the service beyond the age of 60 years.

6. If in context of Regulation 19 the applicant if has admitted that he was appointed in the armed forces, during second world war in the year 1939 and his age was 12 years at that time, his age comes to by this calculation that if he was in the army in 1939 and on his own showing he was 12 years old and if the retirement is made from 11‑8‑1986 which is the impugned order under challenge, the 60 years are not complete. But this case has got a peculiar feature with the following shortcomings in the evidence. Mr. Akber Khan has not produced his date of birth with correct particulars. His reliance on the national identity card is no proof conclusive of the age, which simply the dates of birth are shown by the holders of the cards for the purpose of identification and nothing beyond. Normally the best evidence of the age is the parent certificate where he was born or the school certificate where he received the education or if there is no such entry, normally the date of entry in the job which he initially joined in the Government service or autonomous bodies. The medical certificate is also simply the opinion with always high fluctuation of the margin, of which the Court has taken judicial notice in number of cases.

7. In this case also, the employer has not produced the record of his earlier employment or his latest employment for the Court to have the idea of the employer's entry in the official record of the birth date of Mr. Akber Khan. This is also one of the important defects that having filed affidavit by the respondent before this Court, it was not pressed.

8. So obviously as the admissions of the applicant stand by themselves, he was below 60 at the time of the cause of action and he might have now crossed the superannuation through the passage of time in the litigation. If the order of the retirement is seen, the wordings are shown as of superannuation and not the wordings that at the age of 55 years he has retired and the appointing authority has exercised the discretion. So on the basis of the letter itself, if the age of superannuation had not reached at the time of the cause of action and which cause of action is challenged before the Labour Court, the impugned order is not legally sustainable. However if he has reached the age above 60 now during pendency of litigation in this situation of the evidence, from either side, it is now for the authorities either to issue fresh order when he has in fact reached the age of retirement or will exercise discretion which is purely within the competence of the authority to exercise discretion. However, this may be pointed that if the Court holds that initially the order did not correctly represent the age of 60 as per their own letter, they cannot shake of the responsibility from paying the compensation which otherwise he would have earned as his lawful dues during the period of service, he was employed. If the slightest care would have been taken by the officials concerned there would have been no burden of paying the compensation on the Corporation.

9. There are two other aspects to be considered in this matter. Mr. Soomro has argued that this Court has no jurisdiction because the position of Mr. Akbar Khan is that of Security Guard and the provisions of section 25‑A apply to workman. The arguments of Mr. Soomro, no doubt are strong enough that in view of the judicial precedents i; has been held in number of decisions that Security Guard does not come within the definition of workman. But if the same person is doing the work of. manual nature besides his duty, he can come in the jurisdiction before the Labour Court. Of course each case has got its own peculiarity, and that is to be resolved through evidence, if the contention of the applicant is that manual work was being taken from him, what he has described in paragraph 3 to show that his duties included the opening of gate, loading and unloading spare parts and of the goods coming in the depot. This aspect was controverted but no evidence was led by the Corporation to test its credibility that what has been described is not the correct version.

10. Previously also the Court has taken view that the position of Guard is of security nature. Security comprises of number of factors namely to keep alert and to see what comes within his nature of duties such as the trafficking of goods inside or outside the gate. If merely the guard closes the gate and watches the goods, this also comes within the meaning of security where his security does not confine only himself to sitting on the chair. Security is the term of wider significance that Guard is expected to watch everything what concerns the security. But if the Guard is asked to load the goods or unload the goods what comes in the depot, firstly it is a physical labour involving manual exertion and beyond the scope of his duty. Secondly there is no evidence to rebut what he has described of manual labour. The jurisdiction, therefore, of the Court is fully attracted by holding that he was doing the duties of workman.

11. Mr. Kohistani has also raised point of law that Corporation has framed its own rules of retirement and, therefore, case of the applicant regarding statement are to be governed by IRO or Standing Orders Ordinance. The Court does not agree with Mr. Kohistani on this point of law. The IRO is not specify the age of retirement. These are the rules to be framed by private organizations for the conduct of the business within the legal frame‑work of the labour law as to the security of his job. None has come forward to challege those rules or Regulations. The scope of the section 25‑A is also limited to the interpretations of those notifications which clearly come within the jurisdiction of the honourable High Court, whether the particular notification of Corporation like which is controlled by the Government is ultra vires. The provision of section 50 regarding interpretation before the honourable Tribunal refers to only settlements and awards. The Court, therefore, is of the opinion that for the organisational working the rules form the service structure and any such legality of such notification can be challenged before the honourable High Court or by the declaration of the rights before the Civil Court.

12. In view of the legal position what the Court has seen from the evidence, and the admissions and the relevant period of the service of army in the absence of any particular whether he was initially at the age of 18, his own admissions are taken to the basis for computation of his age. The presumption drawn by Mr. Soomro calculating the age from initial start of 18, such presumption cannot be drawn, what was the age of the applicant's entry when he was in the British Army for want of particulars. His own admissions are to be taken as the basis from the very beginning for the purpose of calculation if no evidence from the Corporation's side has been placed except what he has taken the assistance from his own age, taken on his own documents.

13. In the result the application is allowed in view of the above observations in particular of paragraph 8 of the judgment.

14. The Court will also point ,out as an advice, that in further cases of retirement the Corporation also has to produce the record of service of the employee, what efforts they have taken to verify the age of employee for his entry in the job second time. This may be pointed out that age is the most important factor where number of decisions have shown that the best evidence is the school or parent certificate or if there is no such certificate, the proof of the earlier jobs regarding age. This will avoid the socio‑economic problems. The decision of the Court, always be taken in the context of the improvement and to reduce litigation in the public interest. A.E. 990/L.B.S. Application allowed.