2017 PLP 6 (PLC N)

JUSTICE (R) SAGHEER AHMED QADRI, CHAIRMAN.

The respondent Sher Muhammad son of Imam Din field grievance petition mentioning the facts that he joined the service as Meter-reader having requisite qualification and later he was promoted as Meter Inspector on 22.10.1997; that appellant No. 3 passed the order dated 17.03.2006 whereby the respondent's date of birth was declared as 20.10.1945 instead 20.10.1949 and copy was also sent to him; that vide order dated 27.03.2006 the appellant No. 2 declared the respondent as retired after attaining the age of superannuation; that the respondent submitted an application before the appellant No.1 claiming his date of birth as 20.10.1949 instead 20.10.1945 as he had been drawing the salary till February, 2006 according to his actual date of birth; that according to the direction of higher authorities in inquiry it was declared as actual date of birth 20.10.1945 according to his service record; that he later on sent grievance notice and filed the instant grievance petition before the learned trial court on the ground that his date of birth was wrongly declared by the appellants, hence his retirement order dated 17.03.2003, 27.03.2006 and 28.03.2006 be declared illegal.

2. This grievance petition was replied by the appellant department by raising ten preliminary objections about its maintainability having been filed without any lawful justification as well as hopelessly barred by limitation, without any cause of action as well as on the ground that the respondent has filed writ petition for correction of date of birth which was dismissed by the honourable High Court vide order dated 21.09.2006; that the respondent did not come to the court with clean hand and in Para 8 of the preliminary objection it was submitted: That the petitioner has not come to this Hon'ble Court with clean hands, and kept this Hon'ble court under darkness. As a matter of fact, the brief facts for the rightful decision of the instant petition in hand are that the petitioner was defunct employee of MESCO, who was taken over in serve by WAPDA on 22.05.1981. A complaint was lodged by one Abid Hussain Before the Chief Executive MEPCO and pointed out that date of birth of the petitioner Ex-LS is 01.3.1940 and to take action against the petitioner who fraudulently in order to gain undue benefits himself has changed his date of birth. Upon which scrutiny committee determined the actual date of birth of the petitioner as 20.10.1945, instead of.20.10.1949 which was approved by the Chief Executive MEPCO and was issued vide No.56t/26553-57/CE/MEPCO/EA-1/EB-274 dated 17.3.2006. Afterwards, an inquiry committee was constituted by the Chief Executive MEPCO to probe into the matter the petitioner himself has misplaced his original service book with more direction to prepare new service book and also fixing the responsibility. The inquiry committee accordingly obtained the record pertaining to the service to the ex-official from different office. The Matriculation Certificate of the official was also to verified from the Board of Intermediate and Secondary Education, Lahore is it was told by the petitioner that the same has been lost. The ex-official was asked to provide the original matriculation certificate and two personal photographs, as the same were to be sent to Lahore Board for verification. In the meanwhile the official produced actual service book (duplicate) to the enquiry committee and stated that the same has been traced out from the old record of MESCO (defunct). It is pertinent to mentioned over here that the top half page No.1 of the service book was replaced showing, the date of birth as 20.1.1949. The original service book will be produced at the time of recording of evidence. After hectic efforts regarding obtaining record contacting the relevant ex-officers/officials etc, the committee was of the view that: i. The signatures of the officers/officials appearing in the service book of Mr. Sher Muhammad S/o Imam Din ex-LS-1 now produced to the Enquiry committee are authentic. ii. The original service book was misplaced therefore, the necessity of reconstruction of new service book has arisen. Now actual service book has been provided after tempering/replacing top half of page No.1 showing date of birth as 20.10.1949 which shows that all the drama was to change the date of birth from 20.1.1945 to 20.10.1949. The official (petitioner) himself is responsible for all this. After enquiry the committee concluded that the actual date of birth of the official is 20.10.1945 which has already been determinate by the scrutiny committee. The official already stand retired from service w.e.f. 19.10.2005, therefore, his retirement benefits may be paid to the actual date of birth i.e.20.10.1945. On factual side all the assertions made by the respondent were refuted by the appellants in the light of above preliminary objection, prayed for its dismissal.

3. Learned trial court recorded the statement of the respondent Sher Muhammad as PW-1 who in his statement reiterated his stand mentioned in the grievance petition while getting exhibited documents Ex.P.1 to Ex.P.14. He was cross-examined and learned counsel for the respondent (grievance petitioner) closed the evidence. On the other hand, Liaquat Ali Memon, Deputy Manager Admin. Multan appeared as RW-1 reiterating the stand mentioned in the written reply while getting exhibited documents Ex.R.1 to Ex.R.22. Syed Shabbir Hussain Shah Accounts Officer MEPCO one of the members of the inquiry committee appeared as RW-2 and he proved the inquiry Ex.R.7 & Ex.R.8/ inquiry report. He was cross-examined by the learned counsel for the respondent. Shahid Iqbal Deputy Manager GSC, MEPCO appeared as RW-3 and submitted document Ex.R.23. He was also one of the members of the inquiry officer. He approved the inquiry committee proceedings Ex.R.6. Learned counsel for the appellant while getting exhibited documents Ex.R.24 and Ex.R.25 copy service book of the respondent closed the evidence.

4. The learned trial court after hearing the parties vide impugned judgment dated 21.07.2010 allowed the grievance petition of the respondent entitling him to continue his service since 19.10.2009 on the basis of date of birth 20.10.1949. Feeling aggrieved the appellant-department has preferred this appeal.

5. Learned counsel for the appellants contends that the impugned judgment passed by the learned trial court is against the law and facts of the case; that the learned trial court did not consider the evidence available on the records as after due inquiry it was found that date of birth given in his service record was forged; that the respondent did not adopt the proper course to get declaration about his correct date of birth while filing the civil suit; that the impugned judgment is the result of misreading and non-reading of evidence available on the records; that no grievance notice was ever served nor proved on the record; that respondent did not come to the trial court with clean hands as in matriculation record his date of birth as claimed by him was found un-true and document produced by him was forged, in this respect a FIR was also lodged against him; that the learned trial court did not consider these aspects and without any lawful justification allowed the grievance petition. Prayed that appeal be allowed. As far as the objection raised by the learned counsel for the respondent in his arguments about maintainability of this appeal as it was not properly filed nor signed by party to the litigation. Learned counsel argued that Deputy Director Legal has signed the memo. of appeal as well as power of attorney who was authorized by Chief Executive MEPCO, hence objection raised by the learned counsel for the respondent without lawful justification. It was prayed that appeal be allowed while setting aside the impugned judgment passed by the learned trial court.

6. On the other hand learned counsel for the respondent as already mentioned objected that appeal was neither signed nor filed by a proper party to the litigation, hence it was incompetent and is liable to be abated on this score. As far as merits of the appeal are concerned, learned counsel argued that the appellants own witnesses during the cross-examination clearly admitted that the records available on the basis of which date of birth of the respondent was ascertained were genuine. As far as service book was concerned, it did not find any forged signature of any of the official. Learned counsel argued that mere alleging that the forgery was conducted by the respondent without its proof when the service book/record remained in the custody of the appellant-officials is without justification and until and unless it is proved it cannot be believed as so held by the learned trial court. Learned counsel while referring the oral as well as documentary evidence available on record supported the judgment passed by the learned trial court. Prayed that this appeal be dismissed. He relied on 1993 PLC 909 title Fujicolor Pakistan Laboratories (Pvt.). Ltd. v. Nadeem Iqbal Khan, 1987 PLC 2 title United Bank Ltd. and another v. Muhammad Tufail Ahmed and PLD 1971 SC 550 title Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore.

7. I have heard learned counsel for the parties and perused the records.

8. As far as the objection raised by the learned counsel for the respondent about non-maintainability of this appeal having been filed by un-authorized person is concerned, admittedly, the respondent according to the record filed grievance petition against the appellants Nos.1 to 4 who are Chief Executive MEPCO, Manager Operation MEPCO, Deputy Manager Admin and Deputy Manager Operation MEPCO. The memo. of appeal if seen it is signed by someone without mentioning the name or designation of any of the appellant. An affidavit of one Raja Ishtiaq Ahmed, Deputy Director Legal MEPCO Khanewal Road, Multan is annexed with the grounds of appeal whereby he affirmed and declared on oath the contents of appeal as true to the best of his knowledge and belief. An application under section 151, C.P.C. along-with affidavit of said Raja Ishtiaq Ahmed Deputy Director Legal MEPCO is also accompanied the memo. of appeal, the power of attorney/ Wakalat Nama is also executed by said Deputy Director Legal without giving the name for Chief Executive MEPCO Limited Multan. Admittedly, the appellants is a limited company and until and unless by a resolution the competent authority authorizes any person to file appeal/ application/ suit etc. it cannot be termed as proper legal filing of the liss before a court or Tribunal. Learned counsel for the appellants although agitated that appeal was signed by Deputy Director Legal who was authorized by the competent authority but no such authority/authorization or resolution was present nor learned counsel was able to bring on record or produce during the arguments, hence this appeal in these circumstances is not filed by a competent person/party. Learned counsel for the respondent has relied on the judgments cited as 1993 PLC 909 title Fujicolor Pakistan Laboratories (Pvt.) Ltd. v. Nadeem Iqbal Khan, 1987 PLC 2 title United Bank Ltd. and another v. Muhammad Tufail Ahmed and PLD 1971 SC 550 title Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore, facts of which are totally applicable on the present controversy, hence the objection raised by the learned counsel for the respondent has force. Anyhow, as this Tribunal has heard the arguments on merits, therefore, the merits of the appeal are also hereby discussed.

9. The main controversy between the respondent and the appellants arose when vide letter dated 17.03.2006 (Ex.P.7) it was declared by the appellant-authority that his date of birth was 20.10.1945 instead of 20.10.1949; that later on vide letter dated 24.07.2006 (Ex.P.8) he was declared retired since 19.10.2005. According to the statement of the respondent as well as averments in the grievance petition he had been performing his duties till the last of July, 2006 and had been agitating that the retirement order mentioned above was illegal as his actual date of birth was 20.10.1949 according to the record as well as the statement of RW-1 Liaquat Ali Memon Deputy Manager who during the cross-examination stated: It is correct that it is mentioned in my affidavit Ex.R.2 that according to the version of the informer/complainant the date of birth of the petitioner was 1.3.1940. It is correct that it is also mentioned in my affidavit Ex.R.2 that date of birth of the petitioner was written in his service book as 20.1.1949. Volunteered that tempering was made in the service book by the petitioner by replacing upper half portion of first page of the service book with new one. The complainant/informer was Abid Hussain the real nephew of the petitioner, who complained that his father Muhammad Ramzan who was a retired Meter Reader was born in the year 1942 and he had been retired from service while the petitioner who was elder to Muhammad Ramzan and was born in 1940 was still in service. The allegation against the petitioner was of tempering his service book by making his date of birth as 20.10.1949 instead of 1.3.1940. No charge sheet was issued to the petitioner during enquiry proceedings. Volunteered that no regular enquiry was conducted to probe into the allegation against the petitioner by issuing him show-cause notice and charge sheeting him. The case of the petitioner was forwarded to the committee constituted for the purpose of determining the disputed dates of birth of employees. Further volunteered that photo stat copy of matriculate certificate provided by the petitioner before the said committee hearing his date of birth as 20.10.1949 was sent to the Board of Intermediate and Secondary Education Lahore for verification who vide letter Memo Ex.R.I declared the same as bogus. I was member of the aforementioned enquiry committee. It is incorrect that letter Ex.R.1 was not produced before enquiry committee. The letter Ex.R.1 does not bear my signatures. Enquiry proceedings were not maintained separately. However the said letter Ex.R.1 was produced by the petitioner himself before the enquiry committee, which does not bear the signatures of issuing authority. Volunteered that the certificate Ex.R.1/1 was produced by the petitioner himself before the enquiry committee which was sent to the B.I.S.E. Lahore for verification and was found bogus. It is incorrect that the said certificate was never produced by the petitioner before the enquiry committee. The enquiry committee did not summon any responsible person of the B.I.S.E. Lahore for inquiry purpose. At another stage although in examination in chief stated that date of birth of the respondent was forged by him but in cross-examination he admitted: It is correct that the date of birth of the petitioner on the photo stat copy of the service book Ex.R.22 has been mentioned as 20.10.1949. Volunteered that the said date of birth was written by the petitioner himself through forgery by replacing the upper portion of Ist page of his service book. Service book of an employee is kept with the MEPCO Department. It is incorrect that the petitioner performed his duty in MEPCO till 1.8.2006. Volunteered that the petitioner performed his duty in MEPCO till 28.02.2006. At another stage Shahid Iqbal Deputy Manager MEPCO one of the member of the inquiry committee in his cross-examination stated: It is correct that according to our findings i.e. the enquiry committee, the signatures of the officers/ officials appearing in the service book of Sher Muhammad were authentic. I do not remember as to whether the statement of the petitioner was recorded during enquiry proceedings. I verified the reconstructed service book of the petitioner from 1.12.2004 to 29.01.2005 as the petitioner was working as LS-I under me during the said period. I also verified the service book of the petitioner for the period 1.12.2002 to 30.11.2003 (The witness has given the said answer after examining the reconstructed service possessed by the petitioner). I do not observe any suspicious entries in the reconstructed service book of the petitioner at the time of my verification, if there had been any doubt in the service book at that time, I would have not verified the same. Relevant record about the service of the petitioner was produced before me by the HR and Admn. Department but I cannot tell the name of specific officer/ official in this regard. It is incorrect that no officer/ official of MEPCO appeared before the enquiry committee nor produced the relevant record during enquiry proceedings regarding the service of the petitioner. It is correct that I verified the copy of I.D. Card of the petitioner after examining the original I.D. Card during his service as LS-I under me at Mumtazabad Division. It is correct that according to entries of his I.D. Card his date of birth is 1949. Volunteered that the petitioner has got prepared his I.D. Card with fake date of birth in 2003, while he joined MESCO service in the year 1980 and as such he has got prepared his I.D. Card fictitiously. I have no exact knowledge that prior to 2003 there was no computerized I.D. Card system. I cannot tell that the date of birth of the petitioner in his non-computerized I.D. Card issued on 18.06.1974 Ex.P.1 as 1949 is genuine. At another stage of the cross-examination this witness stated: The allegations against the petitioner were of tempering and replacement top half page No.1 of the service book. However there was no case of tempering against the petitioner and allegation against the petitioner was replacement of Top Half of page No. 1 showing date of birth as 20.10.1949. It is incorrect that I have deposed falsely.

10. If the above mentioned statements of the witnesses in the light of the documents available on record is seen, although it is alleged on one side that service book of the respondent was misplaced which was reconstructed under the direction of the competent authority wherein the date of birth of the respondent was shown as 20.10.1949 and at the same time it was alleged that half top portion of the service book page one was replaced by the respondent but no case of forgery or tempering was ever registered nor proper inquiry was conducted and on the basis of just presumption the respondent was retired in the year 2006 much later to the alleged date of superannuation according to the version put forwarded by the appellants. Admittedly, if the date of birth of the respondent was 20.10.1945, hence he must have to retire much prior to the date i.e. 19.10.2005 but service remained continued and only on the basis of an alleged complaint by real nephew of the respondent, whose father had already been retired while the respondent was continuing the service, therefore, the impugned orders dated 17.03.2006, 27.03.2006 and 28.03.2006 passed by the appellant-authority are without any foundation being illegal as no said complainant was ever examined nor appeared before any inquiry or trial court to prove the allegation of forgery etc.

11. The learned trial Court has discussed all these aspects in its detailed judgment and rightly concluded and allowed the grievance petition while setting aside the orders dated 17.03.2006, 27.03.2006 and 28.03.2006. Hence in these circumstances, firstly the appeal having been filed by a incompetent person and secondly on merits has no, force, therefore, it is hereby dismissed. File be consigned to the records room after its due completion. The trial court's records be sent back immediately. JK/16/PLT Appeal dismissed.