2016 PLP 458 (PLC)

DECISION ALI MUHAMMAD BALOCH, MEMBER.

This appeal has been preferred by the appellant named above under Section 54 (3) of the Industrial Relations (Revival and Amendment) Act, 2010 against the order dated 10.3.2012 passed in grievance application No.48/2008 under Section 46 of I.R.O. 2002 by the learned Presiding Officer, Sindh Labour Court No.IV, Karachi. The case of the appellant as narrated is that he was appointed by the respondent No.1 on 27.01.2976 as Welder in the Hard Strip Mills Section where he performed his duties to the entire satisfaction of his superiors during the tenure of his employment. He has also asserted that he was engaged/employed on the basis of his Army Service Certificate where he served and previously recruited in the Pakistan Army. He also relied upon the P-1--03 Card of Employees Old Age Benefit Institution and according to the appellant he was 27 years old when he employed and engaged by the respondent No.1 and subsequently he was incorrectly and malafidely treated his year and age as 32 years by the respondent No.1 as against the EOBI Card, Army Certificate and Departmental Card issued by the respondent No.1 itself. Appellant asserted that as soon as he received letter/intimation of pre-retirement leave he immediately submitted departmental appeal and approached to the learned National Industrial Relations Commission against such apprehended action which was not acceded too, however, the appellant then approached to the Hon'ble Federal Service Tribunal then having the jurisdiction in appeal No.126(K) (CE)/2005 wherein he had challenged/disputed such age and upon which he intended to be retired on superannuation five years prior against his actual age as per record/official documents. Upon the abatement of service appeal of the appellant on the basis of case law reported as PLD 2006 SC 602, he had approached to the learned Labour Court in grievance application bearing No.65/2006 well within time in view of such judgment in terms of the order of the Hon'ble Supreme Court of Pakistan, but subsequently all the cases were abated for want of judicial order that too on the basis of the dictum laid down by the Hon'ble Supreme Court of Pakistan in the case law reported in S.B.L.R. 2008 S.C. 40 where the case of the appellant deemed to be pending in the Hon'ble Federal Service Tribunal and finally upon obtaining of judicial order dated 25.7.2008 communicated on 28.7.2008 the appellant then approached to the learned Labour Court wherein evidence was led by both the parties and finally the judgment was announced by the learned Labour Court which is impugned by the appellant through the instant appeal. Heard Mr. M.A.K. Azmati learned Counsel for the appellant and Mr. Masud A. Khan learned Counsel for the respondent No.1. They have also advanced their arguments/synopsis in writing. The appellant asserted in the grounds 'A' to 'J' of his memo of appeal by requiting the admissions made by the witness of the respondent No.1 in which the year of birth of the appellant, his date of birth is 27.12.1949 whereas the respondent No.1 incorrectly treating such age as 27.12.1944 on presumption, conjectures and presumptions, the date of birth is treated as 27th December but year was disputed instead of "49" as "44" by asserting that the appellant's age was 32 years at the time of his joining and not as 27 years whereas the appellant has produced the number of documents on such account and the respondent No.1 has not successfully rebutted any document so produced by the appellant and yet harping in the same rope that the year of birth is 44 instead of 49 the appellant even has not send/refer to any independent medical board for determination of his actual date of birth, as such, he has treated on surmises and conjectures which age of superannuation as claimed by the appellant himself have been attained during the pendency of proceedings in forum or the other by running from pillar to post, as such, the appellant's claim that he is entitled to be benefits up-till actual age of superannuation i.e. 26.12.2009. Since the appellant constantly, actively and diligently pursuing his case by challenging the age/date of retirement being determined as years instead of 27 years the question of treatment on the part of the respondent No.1 the year and not the date on presumption of 32 years is not justifiable and had it if so the respondent No.1 had to refer the appellant to any independent medical board by assessing and determination of such dispute instead of treating the appellant as 32 years without any cogent evidence against the official documentary evidence produced by the appellant even the departmental cards ,bearing the number of National Identity Card (old) the other cards including Army Service Certificate, number of documents, even relied and filed along with the instant appeal which have not even disputed by the respondent No.1. I have also minutely perused the written synopsis/arguments advanced by both parties and case laws as referred therein as well as gone through the record and proceedings of the case, which further reveal that the signatory of the written statement has filed his affidavit in evidence being the signatory of the reply/written statement but did not appear for cross-examination and another affidavit in evidence of Muhammed Iqbal the Deputy Manager, the designation of the signatory as shown in the stamp is Deputy General Manager, Incharge of Law Department, whereas the affidavit in evidence filed by the Deputy Manager (Admn) being not even directly subordinate of the signatory, whereas this Tribunal repeatedly held in number of cases that in ease of non-examining of the signatory in Court, the contents of written/reply statement cannot e taken as a piece of evidence in view of the ease law as reported in PLD 1972 SC 25 and thereafter constantly followed such view in number of reported and/or unreported judgments by this Tribunal including predecessor. The very contents of the written statement cannot be taken into consideration unless signatory of the same produced in the witness box as held by the Hon'ble Supreme Court of Pakistan (PLD 1972 SC 25) which has been relied upon by this Tribunal in the case of Nasreen Rasheed v. P.C. Hotel as stated in the foregoing paragraph regarding appeal No.1247/2010 on 15.12.2010, which also upheld by the Hon'ble High Court of Sindh in Const. Petition No.D-35/2011 decided on 03.10.2012 and further this Tribunal also held in Appeals Nos.KAR-41 and 42/2013 - Abdul Hafeez and Hajat Khan v. Pakistan Steel Mills decided on 17.4.2014 and thereafter in other cases i.e. Appeal Nos.KAR-13/2013 to 17/2013 decided on 04.8.2014 reaffirming such view resulted allowing such appeals on the basis of case laws as reported in 197 PLD 1972 SC 25, 1980 PLC 1025, 1989 PLC 810 and 1990 PLC 63 and

429. The facts and circumstances as narrated above, the learned Labour Court ought to be taken into consideration, which the learned Labour Court has miserably failed and relied upon some circular having no over-riding effect upon the right guaranteed and secured of the appellant/worker under the law while dismissing the grievance application and even the case law relied by the learned Labour Court is distinguishable, whereas it is an established law up to the level of the Hon'ble Supreme Court of Pakistan to the effect that in case during the litigation/proceeding, if the age of superannuation reached or crossed in such eventuality incumbent is entitled to the benefits/back benefits up to the date of his superannuation during such pendency as the stand taken by the appellant regarding his claim/age has been crossed during the pendency of the proceedings in different forums and determination of such right on merits, he is also entitled to be the all back benefits w.e.f. 28.12.2004 till 28.12.2009 as held by the Hon'ble Superior Courts that the entitlement can be granted in favour of the incumbent in such ventuality till the date of superannuation as held in a judgment of Constitution Petition No.D-871/2007 on 08.10.2010 - Muhammed Sadiq v. Pakistan Steel, 2008 SCMR 1535, 2009 PLC (C.S.) 302, S.B.L.R. 2007 Sindh 1702(sic) and even this Tribunal also upheld the view taken by the learned Labour Court in the case of Mrs. Ghousia Iqrar v. Pakistan Mineral Development (Pvt.) Limited, decided on 24.8.2011 by the learned Labour Court which has been confirmed by this Tribunal in appeal bearing No.KAR-266/2011 vide decision dated 24.9.2013. In view of the above facts, circumstances, evidence submissions and case laws and the dictum laid down there in the order dated 10.3.2012 passed by the learned Labour Court is hereby set aside and I allow the appeal of the appellant by holding that the appellant is entitled for all the- benefits of his service till his claim of date of superannuation i.e. 28.12.2004 when he was illegally retired, with further direction to the respondent No.1 that beside such benefits the respondent No.1 would also be paid the retirement benefits for the services rendered by the appellant worker, hence the appellant is entitled for all the back benefits with effect from 28.12.2004 till 28.12.2009 along with other retirement/services benefits. Respondent No.1 is directed to implement the decision of this Tribunal within thirty days from the date of this judgment. HBT/8/SLT Appeal allowed.