1989 PLC 512 (PLP)

National Construction Ltd., Karachi v. Muhammad Mateen Hashmi 1982 PLC215ref. Shahbaz v. Crown P L D 1956 F C 40 ref. Mirza Muhammad Kazim for Appellant. S.M. Yaqoob for Respondents. Date of hearing: 21st February, 1989. This is an appeal against the order of learned Presiding Officer, Sind Labour Court No. IV, Karachi, dated 7‑8‑1988, whereby he dismissed the grievance petition of the appellant.

2. I have heard Mr. Mirza Muhammad Kazim, Advocate for the appellant and Mr. S.M. Yaqoob, counsel for the respondent.

3. Admitted facts of the case are that the appellant, when he joined the service of the respondent, in the Declaration Form gave his date of birth as 10‑12 1926 which date of birth was also entered in his Identity Card at the relevant time. He was informed that he would stand retired from 31‑12‑1986, whereupon he made a representation that he was an illiterate man and had given his wrong date of birth. In support of his representation he also produced a medical certificate and a new Identity Card wherein his date of birth was shown as 10‑12‑1938. His representation was accepted vide letter, dated 12‑8‑1986 by Manager (Administration D&S), and he was informed that his year of birth was amended to read as 1938 instead of 1926 on production of satisfactory proof. Copies of this letter were endorsed to. Senior Manager (C.S.B.), Manager (Establishment), Manager (Pay Roll) and Manager (Fort.) The Appellant continued to remain in service. However, vide letter dated 23‑8‑1987 he was informed by the General Manager (A&P) that subsequent change of year of birth was illegal and un authorisedly carried out by Mr. Rehmatullah (G.S.) for which he had been charge‑sheeted and order dated 12‑8‑1986 changing the year of birth as 1938, instead of 1926 was illegal, un‑authorised and was held to be cancelled/withdrawn. By order dated 25‑8‑1987 he was retired from service with immediate effect. Being aggrieved by this order, after service of grievance notice upon the respondent, the appellant filed grievance petition which wits dismissed by the learned Labour Court mainly on the ground that grievance notice had not been served upon the proper authority.

4. In para. No. 6 of his judgment the learned Trial Judge observed `The grievance notice was addressed to the Chairman through General Manager, Pakistan Steel but there was no proof whether it was received by him or not.' In the reply statement the respondents have not specifically denied the receipt of the grievance notice by the Chairman or the General Manager but simply averred that it was not replied, as it was not addressed to the proper authority. Neither it has come in evidence nor in the reply statement nor is there any specific finding of the learned Labour Court as to who was the proper authority.

5. Mr. Mirza Muhammad Kazim, learned counsel for the appellant, has relied upon the decision of this Tribunal in the case of National Construction Ltd., Karachi v. Muhammad Mateen Hashmi 1982 P L C

215. It was held by this Tribunal that `employer' in relation to an establishment which is not run by or under authority of any Department of Federal or Provincial Government, includes besides person or body of persons which employs or employ workman, not only any person responsible for management, supervision and control of establishment, but also `proprietor of such establishment and every Director, Manager, Secretary, Agent or Officer or person concerned with management of affairs thereof. The Chairman of the Company, thus, would clearly be included in the definition of employer for the purpose of I.R.O. and notice to him would clearly be a proper notice for the purposes of section 25‑A, I.R.O.' As pointed out there is only vague allegation that the grievance notice was not served upon the proper authority without disclosing who proper authority was I am in respectful agreement with the earlier view taken by this Tribunal and in my opinion grievance notice had been addressed to the proper person of the Company.

6. On merit it may be pointed out that the dispute between the parties is not as to at what age the workman is to be retired. Admittedly the workman has to be retired at the age of sixty years. The dispute between the parties is as to the age of the appellant. As pointed above according to the original record of the t‑t respondent, date of birth of the appellant was 10‑12‑1986. He would, therefore, have retired on 10‑12‑1926. However, prior to that date his year of birth was corrected in the registers of the respondents and he was informed vide aforesaid letter:

7. Mr. S.M. Yaqoob, learned counsel for the respondents, contended that Mr. Rehmatullah Manager, (G&S) who had passed this order had no authority to change the year of birth and as such that order was illegal. No evidence has been produced before the learned Labour Court to show as to which authority or officer was delegated with such powers. But that as it may, the fact remains that the person who passed the order was an employee/agent of the respondent and this order has been acted upon inasmuch as that the appellant had been allowed to continue in the service for more than eight months after he had attained the age of superannuation on the basis of original date of birth. 11 is settled Law, that the order which is acted upon cannot be re‑called as locus poenitentiae comes to an end as decisive step had already been taken. In the case of Shahbai v. Crown P L D 1956 F C 46 it was observed:‑ "Locus poenitentiae in law refers to power of receding till a decisive step is taken. If a decisive step is taken other consideration would arise, but if that step is yet to be taken, we see no reason to restrict the power to modify or cancel."

8. This subsequent order re‑calling the order changing the date/year of birth of the appellant admittedly was passed without giving him any show‑cause notice. This order adversely affected the appellant. It is established rule of principle of natural justice that no such order can be passed by any authority without giving the person affected an opportunity to be heard.

9. In view of the above legal position the order of retirement is apparently illegal and cannot be sustained. I, therefore, allow this appeal, set aside the ' impugned order of the learned Labour Court and order him to be reinstated with full‑back benefits. However, the respondents are at liberty to determine the correct age of the appellant in view of conflicting statement about age, made by him but after giving due notice and an opportunity to be heard. M.Y.H./1407/Lb. S Appeal allowed.