1989 PLP 241 (PLC)

La, if Saghar for Appellant. Iqbal Akhtar for Respondent. Date of hearing: 2nd March,

988. This is an appeal fled by the appellant against an impugned order, dated 8-5-1986, passed by the Sind Labour Court No. 11 at Karachi, who had dismissed the grievance petition of the appellate under section 25-A, I.R.0.,1969.

2. Briefly stated the facts of the case were that the appellant was appointed in the respondent establishment as a Cook in the year 1948 and was subsequently promoted as Stocker and then Greaser and at that time, his date of birth was wrongly mentioned as 2-5-1925 against which he had protested and had submitted his Birth Certificate from the relevant authority showing his date of birth as 11-10-1930, but, it was not accepted by the respondent establishment and was arbitrarily, illegally and with mala fide intention observed as 2-5-1925 and then was retired from service with effect from 2-5-1985. Further, the appellant claimed that against his unlawful and arbitrary retirement, he filed a departmental appeal which was rejected, so he served a grievance notice followed by his present grievance petition.

3. The respondent establishment resisted the petition on the grounds that as the appellant had not served his grievance notice tinder section 25-A._ 1-l;.E 1969, therefore, it was not maintainable and further that the provisions of section 25-A, I.R.O. 1969 were not applicable to the employment o the respondent establishments and lastly, that his Civil Suit No. 1490/1985-for declaration of his date of birth as 11-10-1930 was also rejected by the Senior Civil judge No. XII Karachi, hence he could not maintain his present grievance petition which was liable to be dismissed.

4. Both the parties filed their respective affidavits-in-evidence and they were duly cross-examined. Thereafter, the learned Labour Court has passed the impugned order, hence, the present appeal.

5. I have heard Mr. Latif Saghar the learned Advocate for the appellant and Mr. Iqbal Akhtar, the learned Counsel on behalf of the respondent establishment and have also carefully perused the record and proceedings of the case. It was argued by Mr. Latif Saghar, the learned Advocate for the appellant that the impugned order is bad in law as it is based on a document, the contents whereof have not been taken into consideration as a whole and in true perspective, but, were read in isolation and so also contrary under the provisions of Evidence Act. It was also submitted by him that the learned Labour Court had failed to exercise jurisdiction vested in it under section 25-A, I.R.O. 1969 and also to follow the dictum of case law, laid down by the Supreme Court in P L D 1978 S C

307. It was also contende that while passing the impugned order, the learned Labour Court did not give reason for not relying upon the official record, being maintained in due course of business and was produced after having come to know about the wrong entry in the service Record of the appellant as the respondent establishment had failed to produce any evidence in rebuttal either oral or documentary. Mr. Latif Saghar, the learned Advocate for the appellant has also pointed out that interpolation and manipulation in the documents was apparent vide Exlr. R/ 4 on record, but, the learned Labour Court did not take any notice of such forgery committed by the respondent establishment the date of birth only with a mala fide intention and to damage the case of the appellant. I see much force in the contentions of Mr. Latif Saghar, the learned Advocate for the appellant. There is a genuine and authentic document on record which c1carl) shows the date of birth of the appellant as 11-10-1930. It is an extract from the Birth Register of Hazro Police Station District Attock for the year 1930. There is nothing on record to show that the respondent establishment had any other document which could genuinely prove the contention that the date of birth of the appellant was 2-5-1925. After careful examination of document. Exh. R/4 on record I find some manipulation in the dates. The learned Labour Court was not correct in not taking into consideration this fact. In view of these facts I would hold that the correct date of birth, of the appellant is 11-10-1930 and not 2-5-1925, therefore, his retirement from service on reaching at the age of superannuation on 2-5-1985 was incorrect hence, it is set aside. Mr. Iqbal Akhtar, A the learned Counsel for the respondent establishment had miserably failed to rebut this fact or to submit any authority in support of his contentions that the document subsequently submitted by the appellant in support of his correct date of birth could not be brought on record or could not be relied upon, Mere assumption that in 1948 the appellant was of about 25 years of age, i.e., at the time of his joining the service to K.P.T. would not oust him from submitting a genuine document in support of his correct date of birth. In view of these facts and legal aspects of the case, I would hold that the learned Labour Court was not correct in passing the impugned order. I would, therefore, set aside the same.

6. For the reasons stated by me above, I would set aside the impugned order and would allow the present appeal. The appellant is directed to be reinstated in service with full back benefits with the directions that he be retired from service after reaching his age of superannuation treating his correct date of birth as 11-10-1930. A.E./1294/Lb.S Appeal allowed.