1994 PLP 287 (PLC)

Sherwali Shah, petitioner herein, employed in the Government Transport Service as Driver, has been served with retirement notice dated 15‑10‑1992 with permission to apply for leave as due to him. The notice reads:‑‑ "According to the service record pertaining to your age etc., you are due to attain superannuation age of 60 years on 24‑4‑1993 and will be considered to have retired with effect from that date. You are, therefore, given an opportunity to apply for leave as due which you may wish to avail before your retirement is effected. Please note that leave beyond the date of your retirement is not permissible under the Road Transport Board Rules as in force." (Sd.) General Manager."

2. The petitioner, feeling aggrieved, has challenged the action of the management, by filing petition under section 22‑A(8)(g) of the IRO, 1969, accompanied by an application under sub‑regulation (2) of Regulation 32 of the NIRC (Procedure and Functions) Regulations, 1973, asserting that the actual date of birth of the petitioner has been changed from 8‑1‑1934 to April, 1933 by the management at the instance of the rival union namely Shaheen Labour Union and in this way the petitioner who happens to be an active member of the Awami Workers Union G.T.S. Peshawar had been penalised due to his trade union activities. The petitioner claimed to have asked the management to rectify his date of birth in the record maintained by the management but he received no response. The petitioner made a prayer the effect that respondents be directed not to act upon the notice of retirement and that his service record be corrected in the light of school leaving certificate and the Army certificate produced by the petitioner at the time of joining service on 25‑4‑1962.

3. In the comments, allegations of the petitioner were repudiated and jurisdiction of the Commission was challenged.

4. Mr. Ghulam Shabbir, Advocate appearing on behalf of the petitioner invited my attention to the school leaving certificate and Army certificate of the petitioner in order to show that the petitioner was born on 8‑1‑1934 and his date of birth had been incorrectly entered in the office record as April, 1933. The learned counsel urged that the petitioner had made several applications to the management for rectification in his age but the applications were not responded at the instance of the rival union on account of his affiliations with `Awami Workers Union'.

5. Mr. Ikramul Haq, Advocate, learned counsel for the management challenged jurisdiction of the Commission and maintained that the action of the management cannot be considered as an act of unfair labour practice.

6. It is evident from the record that at the time of joining service in the year 1962 the petitioner had showed himself to be 29 years of age. This age was entered in the record which was never objected to by the petitioner. It was subsequently at the belated stage when the petitioner applied to the management for rectification in his age. For more than 30 years the petitioner slept over this matter. This omission on the part of the petitioner is clearly indicative of the fact that the plea of victimization has been raised for no other reason but to avoid retirement and pre‑empt the management's right to issue notices to the employees concerning their retirement. In the matters of change of date of birth of its .employees, Government Transport Service, Peshawar follow General Financial Ru16s and Government Policy contained in Government of N.‑W.F.P., Services and General Administration Department Letter No.SOII(S&GAD)5‑(4) dated 12‑2‑1989, the relevant portion of which reads:‑‑ "The date of birth of a civil servant as recorded in his service documents remains constantly in his knowledge. This is reiterated in his ACRs and the Seniority Lists issued by the department from time to time. The preparation of service record of an officer is an official act and according to law, it is presumed, to be correct. GFR‑116 also provides that the date of birth once recorded cannot be altered except in the case of clerical error, without the previous orders of the Local Administration. Despite this, certain Government Servants are complacent with the state of affairs and sleep over their rights for decades knowing fully about their dates of birth entered in their Service Books etc. It would therefore, be too much to accept such a belated claim from Civil Servant that he was born on a date other than the one entered in his service documents and that the delay in representation was due to ignorance of the alleged erroneous entry. After all, there is always attached a finality to decisions taken by competent authorities."

7. For reasons mentioned above, it follows that the record maintained by the management in respect of age of the petitioner, produced by the petitioner himself at the time of joining service, is correct and presumption of truth is attached to it. The petitioner has taken shelter under the date of birth entered in school leaving certificate and Army certificate. These documents could have been produced by him at the time of entry into Government service. At this delayed stage, these documents are of no help to the petitioner. There is nothing on the file to show that the petitioner was prevented at the relevant time to produce these certificates before the authority concerned. At this stage, it does not lie in the mouth of the petitioner to dispute the record regarding his date of birth. It is not denied that unless contrary is proved the presumption is that in the service record, the date of birth is given according to the information furnished by the employee concerned and without any strong and tangible proof, the said date cannot be brushed aside lightly on the simple assertion of the person affected. Executive Engineer CBDC Lahore Division and 2 others v. Karam Din 1988 P L C 494 and Sui Northern Gas Pipelines Ltd., Lahore v. Pir Muhammad 1993 P L C 33.

8. Adverting to the preliminary objection raised by the learned counsel for the respondents, regarding jurisdiction of the Commission, I find that the petitioner has failed to establish a prima facie case of unfair labour practice attracting jurisdiction of the Commission to intervene. The action of the management in serving notice of termination to the petitioner cannot be treated as an act constituting unfair labour practice on the part of the management. The jurisdiction of the Commission as held time and again, is confined to the cases falling within the. ambit of section 15 of the Ordinance I and nothing beyond that. It implies that in cases of victimization for any reason other than trade union activities, this Commission will have no jurisdiction. An important event concerning the jurisdiction of the Commission finds mention in the decision of the Honourable Supreme Court in the case of Workers of Banks and other Financial Institutions covered by the Wage Commission Award. A Division Bench of the Lahore High Court 1985 P L C 1053 and "a similar Bench of the Sindh High Court 1986 P L C 1060 held that a grievance petition under section 25‑A of the IRO, 1969 of such workers could not lie before the Labour Court as that Court could not adjudicate upon a right guaranteed or secured under an Award of the Wage Commission and that the remedy lay only before this Commission. This view was set aside by the Honourable Supreme Court in appeal P L D 1988 SC 53 wherein it was held:‑‑ "It is difficult to subscribe to the view taken by the learned Judges in the High Courts. No doubt, the award given by the Wage Commission is not included in the definition of the term `award' as given in section 2(ii) of the Ordinance, but then as the governing clause of section 2 itself states the definitions given therein are to be read subject to anything repugnant in the context in which the defined terms occur. Apart from that, as held by this Court in Bank of Bahawalpur v. Chief Settlement and Rehabilitation Commission PLD 1977 SC 164 that although normally an expression if defined in a statute has to be given the same meaning wherever it occurs therein, yet there is ample authority for the principle of interpretation that a definition of a term in a Statute is merely declaratory in nature and should not be unnecessarily inflicted where it does not fit in with the subject or context. Here, it is to be noticed that in section 25‑A(1) the term `award' is preceded by the word `any' adds amplitude to the content of the word to which it is prefixed. It is, therefore, not right to construe the term `award' as referring to only those which have been specified in the definition given in section 2(ii) and thus ousts the jurisdiction of the Labour Courts in respect of employees whose terms and conditions of service are governed by an award of the Wage Commission." It may be stated here at the cost of repetition that the petitioner is alleged to have been made scapegoat at the instance of the rival union but there is nothing on the file to give details of those activities which furnished a ground for the management to come into motion and served the petitioner with notice of termination. In the absence of any supporting material to show prima facie, that the notice was served by way of victimization, I am unable to agree that by the service of the said notice itself, a prima facie case of unfair labour practice has been made out. The petitioner is a simple member of the union. He has not shown that he had been championing the cause of his co‑workers on account of which he earned displeasure of the management. The allegations contained in the petition even if they are permitted to stand do not make a prima facie case of unfair labour practice. The existence of unfair labour practice is prerequisite for proceeding with a case under clause (g) of subsection (8) of section 22‑A of IRO, 1969. Since the notice in question has no connection with the trade union activities of the petitioner, the petition based .on allegations of unfair labour practice under section 22‑A(8)(g) of the IRO, 1969 is not maintainable. Both the main petition as well as the stay application are, therefore, dismissed. Stay recalled. H.B.T./207/NIRC Petitions dismissed.