2016 PLP 377 (PLC)

MUHAMMAD AKBAR SANI, MEMBER.

By this order I intend to dispose of the above titled petition filed by the petitioner against the respondents through Mr.Abdul Zahir Kakar, Advocate under section 33 of Industrial Relations Act, 2012 along with an application under Regulation 32 (2) (c) of N.I.R.C. (P&F) Regulations, 1973.

2. Brief facts of the case as per contents of the petition are that the petitioner joined Allied Bank of Pakistan on 31-05-1979, performed his duties with utmost satisfaction of his seniors and since than his service record remained un-blamable. It is further stated in the petition that in the year 2012, [the petitioner came to know regarding wrong entry of his date of birth in his service book which according to his school certificate issued by Government Primary School, Thorr Battagram is 28-08-1956 but was wrongly entered as 28-09-1953, as such, after correction of date of birth in CNIC, the petitioner moved an application to the quarter concerned for correction of date of birth in the service book as per school record. The request of the petitioner was accepted and his date of birth was corrected in the bank record/ service book as 28-08-1956 instead of 28-09-1953.]A 3. [The petitioner, as mentioned in the petition, in the year of 2014 again came to know that his actual date of birth is 28-08-1960 and School authorities have wrongly entered the same as 28-08-1956 in school record, therefore, a suit for declaration and mandatory injunction was filed against NADRA and its authorities in the Court of learned Senior Civil Judge Battagram (Khyber Pakhtunkhwa) for correction of date of birth in CNIC and the learned Senior Civil Judge vide Judgment/ decree dated 07-06-2014 passed decree in favour of petitioner. Consequently in compliance of above decree dated 07-06-2014 the date of birth of petitioner was corrected in School record, CNIC and driving license, however, the bank authorities refused to correct the date of birth of petitioner and vide letter No.REF:HRG/ (SFA)/2015/3430 dated 10th September, 2015, the petitioner was directed to be relieved from duty on pre-superannuation leave w.e.f. October, 2015 on account of date of birth i.e. 28.08-1956.]B

4. It is further mentioned in para No.6 of the petition that Mr. Khalil Khan, a colleague of petitioner who had identical case was allowed correction in his date of birth two times, once on his own request and second time in compliance of a decree dated 16-01-2012 passed by Senior Civil Judge, Sibi and his date of birth was corrected as 04-02-1955 in the Bank record instead of 1953 and thereafter, he was retired on the same date. According to the contents of the petition at present he is Vice-Chairman of CBA registered as All Pakistan Allied Bank Workers Federation and he always endevour to assist the office colleagues who were in need of help, in the last para of petition he disclosed that he filed departmental appeal (which as per record is grievance notice) against the letter No.REF:HRG/ (SFA)/2015/3430 dated 10th September, 2015, but the same was not replied. He sought following prayer in the petition:-- A. The letter No. REF:HRG/(SFA)/2015/3430 dated 10th September, 2015 issued by respondents/ Bank to be illegal, issued in excess of authority and jurisdiction as a result of victimization and unfair labour practice, consequently the same may be set aside. B. Direct the respondents to correct the date of birth of petitioner in their record as 28-08-1960. C. To further direct the respondents to retire the petitioner on his correct date of retirement as per his original date of birth i.e. 28-08-1960 instead of 28-08-1956. D. Any other relief which this Hon'ble Commission may deem fit and proper in the circumstances of the case may also be granted, in the interest of justice.

5. The respondents strongly contested the petition as well as stay application by filing replied wherein they raised certain legal objections along with the objection of limitation.

6. The learned counsel for petitioner contended that the respondents under the law are bound to comply with the judgment/ decree dated 07-06-2014 passed by Senior Civil Judge Battagram. The learned counsel for petitioner further submitted that the ex-employee of respondents/Bank Mr. Khalil Khan son of Mian Khan's date of birth was corrected by the Bank in compliance with the ex parte judgment/decree dated 16-01-2012, therefore, the petitioner is also entitled to be treated equally as his case also lies on the same footings. On the point of limitation, the learned counsel for petitioner submitted that his cause of action started from the date i.e. 07-06-2014 when judgment/ decree was passed by the Senior Civil Judge Battagram in favour of petitioner, therefore, his petition is within time. In the last of his arguments, the learned counsel for petitioner submitted that the petition may be accepted.

7. On the other hand, the learned counsel for respondents strongly repudiated the arguments of learned counsel for petitioner and contended that the petitioner at the time of induction into service had provided National Identity Card No.601-53-141016 to the respondents/appointing authority at the time of joining his duty, wherein his date of birth was mentioned as 28-09-1953, therefore, same was entered in Bank record and service book of petitioner. He next contended that all the other documents i.e. family data, form-5 provided/filled by the petitioner himself bear the same date of birth i.e. 29-09-1953 and these documents have also been signed by the petitioner as back as thirty two years ago, therefore, at this stage when he is at verge of his retirement he under the law cannot claim that his date of birth be corrected but even than, the respondents/Bank on his written request corrected the date of birth of petitioner as 28-08-1956 in his service book/ bank record without raising any objection, despite of the fact that the date of birth i.e. 28-09-1953 was entered in the Bank record on account of the documents i.e. National Identity Card presented by him at the time of his appointment. The learned counsel for respondent relied upon case laws reports in 2014 SCMR 1008 and 2011 PLC 176 and in the last of his arguments, the learned counsel for respondents submitted that the petition as is hopelessly barred by time, as such, the same along with application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 may be dismissed.

8. I have heard the arguments, perused the documents with the assistance of learned counsel for the parties. The petitioner according to record of the Bank and his own showing, joined service on 31-05-1979. As admitted by the petitioner in para No.2 of his petition that in the year 2012 he came to know about wrong entry of his date of birth in his service book, therefore, the petitioner on the basis of school certificate issued by Government Primary School Thorr Battagram got corrected his date of birth in the CNIC as 28-08-1956 instead of 28-08-1953. Subsequently on his written request his date of birth was corrected in the bank record and in his service book as [28-08-1956 as per School certificate. Though under the law, the petitioner was not entitled for the relief which was granted to him by the respondents as it took him 32 years to seek change in his date of birth which was recorded in the bank record on the basis of National Identity Card No.601-53-141016 submitted by him at the time of his induction in the service, therefore, the respondents were never held responsible for the entry made in the Bank record or Service Book, if it was wrong.]C Other documents available on file have not been denied by the petitioner i.e. Personal data forms and application form No.105, these documents have been filled in by the petitioner himself which bears the date of birth as 28-08-1953 and also bears his signature which reflects that the date of birth i.e. 28-08-1953 along with all other information mentioned in these documents have been provided by the petitioner himself and thereafter put his signatures on the same. Therefore, it is established that the entry of the disputed date of birth in the service book and on other documents/record as stated earlier is not the mistake of respondents, but even than the Bank authorities once allowed the correction in the date of birth and same was corrected as 28-08-1956 which fact indicates that the allegation of unfair labour practice against respondents is a frivolous and baseless ground. 9. [As far as the judgment/ decree dated 07-06-2014 passed by the Senior Civil Judge Battagram is concerned, the respondents/Bank are not bound to comply with the same as this decree has been obtained behind the back of respondents without impleading them in the suit as party. It is to be noted here that the respondents have already redressed his grievance regarding correction of his date of birth simply on his own written request that too after the lapse of thirty two years, therefore, the petitioner, under the law cannot be allowed to repeat same action time and again only for his benefit by over looking all the rules and regulations of the Bank. Even otherwise that decree was obtained against the NADRA authorities not against the respondents.]D

10. As far as judgment/decree dated 16-01-2012 passed in favour of Mr. Khalil Ahmed is concerned in my opinion that too is not helpful for the petitioner for the reason that his grievance has already been redressed once despite of the fact that he approached the bank with the delay of 32 years when he was on the verge of his retirement on the basis of school certificate and than after two years he challenged the said school certificate in the court and sought again alteration in his date of birth which was recorded on the basis of school certificate issued by Government Primary School, Thore, District Battagram, the said act of petitioner is nothing but seems to be based on mala fide, therefore, cannot be allowed. To support my view the case laws reported in 2014 SCMR 1008, 2011 PLC 191, 2011 PLC 176 are relied upon. 11. [Taking guidelines from the above quoted case laws, I am of the opinion that the petitioner who has been given the relief of his own choice once is alteration in his date of birth, by the respondents/Bank, shall not be allowed to approach the respondents/Bank for the same purpose but adopting different tactics.]E

12. Next objection of the learned counsel for respondents was that the petition is time barred, as the cause of action arosed to the petitioner in the year of 2012 prior to the month of August when he approached the Bank first time for correction of date of birth and the Bank vide letter dated 15th August, 2015 altered his date of birth as 28-08-1956 but again in the year 2014 after two years he challenged his date of birth already corrected on his own request on account of decree dated 07-06-2014 passed by Senior Civil Judge, Battagram in which the respondents were not party, cannot create any legal right in favour of petitioner which could provide him fresh cause of action against the respondents, therefore, the petition filed is hopelessly barred by time. 12.(sic) In view of the above discussions, I have no option, but to dismiss the petition with no order as to costs. File after completion and compilation be consigned to record. Given under my hand and seal of the Commission on this 20th day of January, 2006. HBT/6/NIRC Petition dismissed.