1978 PLP 158 (PLC)

Respondent in person Muhammad Rafi respondent was employed as work‑charged electrician in the Communications and Works Department of the Government of the Punjab in May 1974. The Executive Engineer 7th Provincial Buildings Division, Lahore considered that the respondent and two others work‑charged employee, namely Aziz Ahmed Khan and Mafia Abdul Karim were above 60 years of age. He therefore directed the S. D. O., Punjab House Service. Sub‑Division Lahore to get the, respondent and aforesaid two persons medically examined for the determination of their age. Letter was issued to the respondent and others to produce fitness cer1ficates issued by the Medical Superintendent, Services Hospital, Lahore, before 30ih June 1974. The respondent submitted himself for medical examination before the Medical Superintendent, Services Hospital, Lahore en 26th June 1974. The said Medical Superintendent opined that the respondent was 55/56 years old and issued a certificate dated 27th June 1974 accordingly. In the meantime however by the letter dated 26th June 1974 issued by the Sub‑Divisional Officer, Punjab House Service Sub‑Division Lahore, the respondent was retired w. e. f. 27th June 1974 on the ground that he was beyond the age of 58 years.

2. The respondent subsequently filed an appeal before the Superin tending Engineer who informed the Executive Engineer 7th Provincial Buildings Division. Lahore by letter dated 10th September 1974 that he shod follow the Government Instructions and nick to the actual date of birth given in the Service Book. This decision it appears was not communi cated to the respondent.

3. It is however noteworthy that in the meantime the respondent and the other two affected employees were again referred to the Medical Board and the said Board assessed the age of the respondent as 53/54 years. The other two persons were however restored to their jobs but the respondent was not retaken in service on the ground that there was mutilation in the entries (regarding age in the Service Book of the respondent.

4. The respondent ultimately on 23rd November 1974 filed application under section 2S‑A of the Industrial Relations Ordinance, 19119 against the appellants before Junior Labour Court No. 1, Lahore seeking his re‑instatement with back benefits.

5. The appellants resisted the petition and pleaded Inter alia that the same was time bared and that the Junior Labour Court had no jurisdic tion in the matter inasmuch as the respondent was employed in the administration of state. On merits it was contented that the Government was not bound to accept the opinion of the Medical Officer when there was a proof of the age of the respondent recorded in his Service Book.

6. Muhammad Raft respondent appeared as his own witness before the learned Lower Court. He also produced Exh P‑1/1 certificate issued by the Medical Superintendent, Services Hospital, Lahore on 27th June 1974. He produced letter dated 20th June 1974 Exh. R‑1/2 whereby he was required to get himself medically examined Exh. RW 1/3 order of retirement dated 26th June 1974 and Exh P. W. 1/5 certificate Issued by the Medical Board.

7. In rebuttal Abdul Hamid Sub Engineer appeared on behalf of the appellant. He produced Service Book Exh R‑1 of the respondent. He stated that on the first page of the Service Book the entry regarding age Exh. RW 1/2 was actually 17th January 1911 and it was subsequently mutilated as 1917. He disclosed that since there was mutilation regarding entries of age in the Service Book the respondent was referred for medical opinion. He stated that no written report was made about the mutilation regarding age and no notice in this behalf was given to the respondent. Muhammad Aslam CW‑1 stated that the respondent had filed appeal against his retirement before the Superintending Engineer, which was rejected and the XEN was informed on 10th Octobe3 1974. XEN did not inform the respondent of this decision.

8. After considering the parties evidence the learned lower Court concluded that the entry about the date of birth of the respondent in the Service Book was mutilated and was as such doubtful. He had a right of being afforded the opportunity to prove his correct age by collateral evidence. The same has not been considered and his retirement has been based on conjecture. Consequently the learned Court below set aside the retirement of the respondent and directed the appellants to restore him to duty and pay him all his back benefits. This order was made by learned lower Court on 29th November 1975 and the same has been impugned through the present appeal.

9. I have carefully gone through the records of the case and the parties have also been heard at length. As regards the plea of limitation raised by the appellants it is observed that keeping in view the fact that the respondent filed appeal before the Superintending Engineer against the order of his requirement and the Superintending Engineer by his later dated 10th September 1974, addressed to the XEN rejected the appeal while the XEN did not inform the respondent accordingly the application filed by the respondent before the leaned lower Court on 23rd November 1974 would appear to be within time.

10. So far as the objection of the appellants that the respondent was employed in the administration of state and the before the Junior Labour Court had no jurisdiction in the matter is concerned, it may be stated that the respondent was employed as work‑charge electrician. This appointment can by no stretch of imagination be deemed to be an employment connected with inalienable Regal, functions of the State. He cannot therefore be said to be a person employed in the administration of the state within the meaning section 1(3) of the Industrial Relations Ordinance, 1969.

11. Since the respondent happened to boa work‑charged employee he is not a Civil Servant and therefore jurisdiction of the Junior Labour Court is not barred; by the provision of the Service Tribunals Act as well.

12. As far the merits of the case, according to the appellants own stowing the entries regarding the age of the respondent in the Service Book were mutilated. The same cannot therefore be relied upon as a collateral evidence, the best proof of age could be the opinion of the Medical Board. According to the said opinion the respondent had not yet attained the age of superannuation.

13. In the light of what has been said above we find no merit in this appeal, which is accordingly dismissed while the impugned order is upheld.