ABDUL AZIZ KUNDI J.--- Amir Zada, Ex-Messenger, National Bank of Pakistan has through the instant appeal questioned the judgment and order, dated 14-9-2009 by Presiding Officer, Labour Court, Peshawar dismissing his grievance petition under section 44 of the Industrial Relations Ordinance, 2002 and has prayed for reversal of the said judgment and acceptance of his grievance petition.
2. Facts precisely stated are that appellant had been appointed as Messenger in the National Bank of Pakistan i.e, the respondent-bank vide order, dated 20-4-1975 and he had accordingly joined his duty on 5-5-1975. During his service, the respondent-bank taking his date of birth as 17-2-1949, directed the appellant to submit application for LPR and ultimately on 19-2-2008 he was relieved from duties and order to avail LPR treating his date of birth as 17-2-1949 while he alleged his date of birth to be 1-5-1958. Accordingly, he served grievance petition upon the respondent-bank and having found no response, filed his grievance petition before the Labour Court which was tried and ultimately dismissed through impugned judgment and order dated 14-9-2009.
' Arguments heard. Record perused.
3. In support of his claim, petitioner/appellant produced P.W.1 Muhammad Zahir Officer Grade-I, National Bank of Pakistan Regional Office, Peshawar who tendered in evidence record Exh.P.W.1/1 to Exh.P.W.1/14. Appellant/petitioner recorded his own statement as P.W.2 and besides the record produced by P.W.1, he produced copy of his National Identity Card Exh.P.W.2/1, grievance notice dated P.W.2/2 and receipt of the courier service Exh.P.W.2/3. In his cross-examination, he was confronted with original form of Identity, copy of Exh.P.W.2/X1 where he refused his signatures on the same. Similarly, he denied receipt of letter, dated 6-6-1981, copy Exh.P.W.2/X2 from the respondent- bank.
4. As against that respondent produced R.W.1 Asmatullah, AVP, National Bank of Pakistan who again produced appointment letter and arrival report of the appellant as Exhs.R.W .1/2 and. R.W.1/3. He also produced letter, dated 16-2-2008, copy Exh.R.W.1/4 whereby appellant date of birth was finally held to be 17-2-1949.
5. Exh.P.W.1/1 Medical Certificate, dated 28-4-1975 duly signed by Bank Medical Officer at the time of his appointment would indicate that age of the appellant had not been recorded in the relevant column neither as per statement of the appellant nor by appearance, while Exh.P.W.1/2 confidential report of the appellant would show two dates 17-2-1949 having been crossed and substituted by 1- 5-1958 but without any signature or initial of anybody making the said change; Exh.P.W.1/3 is a school leaving certificate issued by Head Master, Government Middle School, Sufaid Dheri, Peshawar showing his date of birth as 1-5-1958 and his discharge from the said school on 5-5-1971 when he was a student of class-VI; Exh.P.W.1/4 is office note, dated 28-5-1981 proposing certain steps to verify the exact date of the appellant: Exh.P.W.1/5 is a letter, dated 19-2-2008 by Regional HR Chief to Operation Manager, National Bank of Pakistan, University Campus Branch, Peshawar directing him to immediately relieve the appellant considering his date of birth as 17-2-1949 so that he should avail his LPR; Exh.P.W.1/6 is a letter inter se two offices of the respondent-bank while Exh.P.W.1/7 is an application, dated 10-1-2010 by the appellant questioning the date of birth as 17-2- 1949. Exh.P.W.1/8 is again copy of order, dated 19-2-2008 issued by Operation Manager National Bank of Pakistan, University Campus Branch, Peshawar relieving the appellant from his service on attaining the age of superannuation; Exh.P.W.1/10 is memorandum letter, dated 6-6-1981 by Vice President, National Bank of Pakistan to the appellant calling for his explanation and reason as' to why he quoted his wrong date of birth at several times; Exh.P.W.1/11 is a letter, dated 20-5-1981 addressed by the bank to the Head Master Government High School, Sufaid Dheri, Peshawar for verification of the certificate of the appellant while Exh.P.W.1/12 is a letter, dated 22-3-1997 pertaining to the wrong date of the appellant and Exh. P. W .1'13 is a letter, dated 9-10-2006 by Regional HR Chief to Manager Operations National Bank of Pakistan University Campus Branch, Peshawar. Exh.P.W.2/1 is copy of Identity Card of the appellant where his date of birth has been recorded as 1-5-1958.
6. The record of the case would show that the plea of the appellant that his date of birth is 1-5-1958 is supported by his School leaving certificate, Exh.P.W.1/3 and NIC Exh.P.W.2/1 and that in support of the plea of the respondent, the only document Exh.P.W.1/2 is confidential report which though carries 17-2-1949 his date of birth but the same has been crossed and substituted by 1-5-1958 but without any signature or initial to substantiate the said change. The medical certificate Exh.P.W.1/1 prepared at the time of his induction into service has left the things in suspicion by leaving the relevant column blank while another entry of 17-2-1949 is in the identity form Exh.P.W.2/X-1 of the appellant.
7- Not only this but in 1981 when the authority took up the matter in order to determine the correct date of birth of the appellant, they without taking it to its ultimate conclusion left the same in the mid of the process and went into deep slumber for a very long period.
8. Under the National Bank of Pakistan Staff Service Rules, 1973, age limit for induction into service is provided under Rule 11 which is reproduced as under: "11. Age Limit.--- A candidate shall not be less than 18 years or .:more than 25 years of age at the time of recruitment in the bank service; Provided that the age limit may be relaxed by the competent authority in suitable cases".
9. When looked into under the above rule, then with 1-5-1958 as his date of birth appellant was below the required age while with 17-2-1949 as his date of birth he was above the required age having crossed 26 years of his age and there is nothing on the record, nor has any attempt being made by the respondent-bank that while appointing the appellant in the bank service, the rules were relaxed either way in favour of minimum or maximum age limit.
10. The Labour Court has though non-suited the appellant but the said approach to the matter in the light of the above statement of facts does not appear to be correct. As observed above, with date of birth as 17-2-1949, he was over age while with date of birth as 1-5-1958, he was below age.
The respondent-bank being the employer and custodian of record was under a heavy legal duty to prove the correct date of birth of the appellant from its record and should have in fact determined and recorded correct date of his birth at the time of his induction into 'service. By appearance it can be said that the date of birth recorded as 1-5-1958 in the school leaving certificate, NIC and also corrected in the confidential report of the appellant is prima facie, correct age of the appellant.
' In this view of the matter, it is held that appellant had still time to continue his service in the respondent-bank having not reached the age of superannuation and was wrongly sent on LPR by the respondent-bank on the basis of his date of birth as 17-2-1949. Thus while allowing this appeal, the grievance petition of the appellant is accepted in terms of the prayer made therein. Parties to bear their own costs.