' BASHIR AHMED MEMON (MEMBER).--- The petitioner named above has brought this petition under section 25 of Industrial Relations (R&A) Act, 2010 claiming that he joined the service of respondent company as Karkum in the year 1979 at the age of 20 years and has served with respondents with full zeal; honesty and hard working during entire period of his employment with the respondents.
The petitioner is also active member/staunch supporter of KESC Labour Union (CBA) and was duly authorized by the CBA to coordinate the grievances of members/workers of the concerned departments. Photo copy of certificate has been produced as Annex. P. It has been stated by the petitioner that the respondents have recorded/entered wrong date of birth in their record on the basis of age declared by him also whereupon an inter departmental memo was issued wherein it was pointed out that in some record date of birth was mentioned as 30-6-1958 and in some documents as 15-12-1950, which is sufficient proof in support of stand of petitioner's birth date on the basis of his declaration. The petitioner has produced departmental memo along with staff record as Annex.P/1, P/2, P/3 and P/4 respectively. It has been stated by the petitioner that after coming to know that his age has not been correctly recorded as such the petitioner produced School Leaving Certificate issued to him on 28-1-1986 wherein his birth date has been recorded as 16-3-1958 and as per desired requirement of the management the petitioner appeared before the Board of three doctors of Civil Hospital who assessed the age on 22-3-2010 between 50 to 55 years which also corroborated the date of school leaving certificate of the petitioner. Photocopy of School Leaving Certificate and medical certificate is produced as Annex.P/5 and Annex.P/6. It has been stated that in the background and on the basis of wrongly recorded birth date in service record the respondent management has issued letter dated 17-6-2010 informing the petitioner that he will stand retired on 30-6-2010 and on receipt of this letter he submitted representation and then reminder dated 2-7-2010 and finally the request of the petitioner was declined under letter dated 22-7-2010 and again vide letter dated 28-7-2010 the respondents admitted that his retirement date is incorrect and photocopies of all those letters dated 17-6-2010, 2-7-2010, 22-7- 2010 and 28-7-2010 are produced as Annex.P/7, P/8, P/9 and P/10 respectively. It has been stated by the petitioner that since he is active member of CBA and his union activities are not liked by the respondent management as such he is being retired on the basis of wrongly recorded birth date instead, of making correction of his date of birth.
2. On admission interim stay order was granted in favour of the petitioner and the respondents were restrained from retiring the petitioner from service on 10-10-2010.
3. Upon service of notice the respondents filed their comments and counter affidavit denying the assertions made by the petitioner. They have challenged the maintainability of the petition and have stated that the petitioner had submitted an application for employment on 16-9-1979 in which he himself has mentioned his 'age as 28 years and calculating backwards his year of birth comes to 1950. The respondents have produced copy of application of petitioner as Annex.R/1. The petitioner has also submitted Pre-Employment Medical Examination to the respondents at the time of recruitment on 6-10-1979 in which his date of birth was recorded as 1950 and copy of medical' certificate has been produced as. Annex. R/2. It is further submitted that the petitioner had also submitted copy of National Identity Card at the time of his appointment, which shows his date of birth as 1950, copy of the same is filed as Annex R/3. No application for correction was made during the last 31 years of his service, therefore his date of superannuation was recorded as 10-10-2010 and only few days before his retirement he has filed the present petition before this Bench of Commission. It has also been stated that even CNIC issued by NADRA filed by the petitioner as Annex.R/4 alongwith the present petition shows his birth date as 1950 and the prayer of the petitioner would tantamount to suspend the recorded birth date in the year 1979. It is further submitted that petitioner himself submitted a Declaration Form for disbursement of his legal dues in case of death and in this Declaration he also recorded his date of birth as 1950, photocopy of the same is produced as Annex.R/5. The allegations of unfair labour practice have been denied and prayer is made for rejection of not only application under Regulation 32(2)(c) of NIRC(P&F)
Regulations, 1973 but main petition also being not maintainable.
4. I have heard arguments of both the learned counsel appearing on behalf of the parties and have gone through the material placed on record.
5. I have perused the application of petitioner for appointment dated 16-9-1979 which is signed by the petitioner (Annex.R/1). The petitioner in the same application has mentioned that he was the man of 28 years in the year 1979 and it will establish that he was born in some where in the year 1950. There is another document Pre-Employment Medical Examination (Annex.R./2) which also shows the date of birth of the petitioner as 1950 and age 28 years. This certificate is dated 6-10- 1979. The petitioner at the time of his recruitment with respondents had produced his NIC which shows his date of birth as 1950 (Annex.R/3). There is also CNIC of the petitioner (Annex.R/4) which also shows birth date of the petitioner as 1950. The respondents have produced Declaration Form and nomination (Annex.R/5) regarding his legal dues. This declaration form was submitted on 31- 7-2000 showing his date of birth as 15-12-1950, date of appointment as 4-11-1979 and date of confirmation as 3-2-1980. Declaration forms as well as nomination form are signed by the petitioner before the Executive Engineer and Admin Officer Budget. The respondents have also filed Confidential Reports for the Years 2001 and 2003'(Annex.R/6 and R/7) and date of birth of the petitioner is mentioned as 30-6-1950. All these documents are not favouring the petitioner's case.
6. In a decided case of Saleh Shah son of Rahim Shah v. Karachi Dock Labour Board Full Bench of this Commission vide order dated 5-12-2005 has held that recording of wrong date of birth in the record the management has not committed any act of unfair labour practice, as such it cannot be said that the respondents have recorded date of birth of the petitioner as 1950 as an act of unfair labour practice. As already stated throughout his service carrier he remained quiet respecting the date of birth recorded by the management in the record. Even on his own showing he came to know about this factum in August, 2010 but approached this Bench of Commission after two months of service of letter of his retirement. As already stated the element of unfair labour practice which is a sine qua non for the exercise of jurisdiction of this Commission is missing as such in the circumstances the petition is not maintainable.
' In view of above discussed facts and circumstances I am of the considered opinion that the petitioner has failed to establish a case of unfair labour practice. Accordingly not only the stay application under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 but the main petition also stands dismissed.