' ABDULLAH BALOCH, MEMBER.---. This appeal is directed against the impugned Judgment Dated 30-06-2015 passed by the 1St Labour Court Quetta whereby, allowed the application of the respondent filed under section 41 of Balochistan Industrial Relation Act, 2010.
2. Brief facts arises from the instant appeal are that the respondent filed an application under section 41 of Balochistan Industrial Relations Act, 2010 against the impugned Order dated 12-12- 2014 passed by the appellant No,1 wherein the Date of Birth of respondent was determined as 25- 01-1956. While the respondent gone through his service record and came to know that his actual Date of Birth, 25-12-1960, had been A tampered in his service book. Being aggrieved from the same, the respondent filed an application to the competent authority (appellants) for rectifying his Date of Birth in service record. The appellants constituted an inquiry committee for finding of facts. The committee after examination of record, comes to the conclusion that the actual Date of Birth of respondent was correctly incorporated in his Service Book, as 25-01-1956. Being aggrieved from the findings of the inquiry committee, the respondent filed the above stated petition before the 1st Labour Court Quetta.
3. The petition was contested by the appellants on legal as well as on factual grounds, wherein vehemently denied the claim of the respondent.
4. Out of the pleading of the parties, the learned Trial Court framed as many as 4 issues as under: "ISSUES:---
1. Whether the applicant presented the departmental appeal/ representation before the respondents?
2. Whether the application filed by the applicant is time barred?
3. Whether the correct date of birth of applicant is 25-12-1960 instead of 25-01-1956 and the date of birth of applicant is tampered in his Service Book?
4. Relief?"
5. Thereafter the parties were directed by the Learned Trial Court to produce their witnesses in support of their contentions. Accordingly the respondent, produced three witnesses and also recorded his own statement. In rebuttal, the appellants only produced their representative Mr. Pervaiz Anjum UBC as R/W.1.
6. After hearing the parties the Learned Trial Court allowed the petition of the respondent and directed the appellants to correct the Date of Birth of the respondent as 25-12-1960, instead of 25- 01-1956 vide its judgment dated 30-06-2015.
7. Mr. Ghulam Mustafa Buzdar along with Mr. Ain-ud-Din learned counsel for the appellants contended that the respondent was initially appointed by the appellants as Assistant Line Man on the basis of son quota on, 02-08-1974, wherein his Date of Birth was recorded in his service book as 25-01-1956. He further contended that the respondent in numerous documents mentioned his Date of Birth as 25-01-1956 instead of 25-12-1960. He further contended that as per rules, the Date of Birth of an employee once recorded in the service book cannot be altered at a belated stage. He further contended that if at all the Date of Birth of respondent if deemed correct as 25-12-1960, than on his date of appointment i.e, 02-08-1974, he was of 13-14 years, which could not have been possible. He further contended that his Date of Birth in matriculation certificate i.e, 25-12-1960 is after thought and he had passed his matriculation in the year 1980, while he was appointed on 02-08-1974 and the CNIC relied upon by the respondent is also obtained, later on, he further contended that the Learned Trial Court without proper appreciation of the documents accepted the application of the respondent against the norms of justice and impugned judgment is not sustainable and liable to be set aside.
8. Conversely, Mr. Asif Reki learned counsel for the respondent strongly opposed the arguments so advanced by the learned counsel for the appellants and contended that the respondent was appointed as Assistant Line Man on 02-08-1974 by the appellants and his service book was accordingly maintained by the appellants wherein his Date of Birth was recorded as 25-12-1960, and the respondent was satisfied with the entries made in his service book. He further contended that the respondent surprised and shocked when came to know that his Date of Birth was tampered in his service book as 25-01-1956, instead of 25-12-1960. He further contended that the respondent immediately filed an application to the appellants for correction of his Date of Birth according to documents. He further contended that though on pressure of respondent the appellants constituted a biased inquiry committee of its subordinates and the said committee illegally and unlawfully declared the Date of Birth of the respondent as 25-01-1956. He further relied on CNIC, Matriculation certificate of the respondent and also relied on the impugned judgment dated 30-06-2015, passed by the 1st Labour Court, Quetta.
9. I have heard the counsel for the parties and perused the record.
10. Bare perusal of page 2 of the service book reveals that the respondent was admittedly appointed as Assistant Line Man by the Chief Engineer Quetta vide Office Order No, CEQ/EB/SELECTION 1334/207-74 and posted at Quetta Cantt. Sub-Division vide Order No, XEN1/EC/PF I, resumes duty as ALM on 23-07-1974 (FN).
11. It is pertinent to mention here that, though the above mentioned Date of appointment of respondent neither disputed by the appellants nor by the respondent, however, it is worth to mention here that neither the aforementioned appointment letter is available on record of the appellant nor in the possession of respondent, despite several opportunities were afforded to the parties to bring the same on record, but both the parties failed to produced the letter of appointment.
12. It is further interesting, no application for appointment of respondent on the said post is available on record, either by the appellants or by the respondent, to ascertain the particulars given by the respondent at the time of applying for the post.
13. The moot question between the parties, is only tampering the Date of Birth recorded in Page 1 of the service book. To determine the factual position the original service book was called by this Tribunal, on examination of the said service book, it is observed that in the column of C Date of Birth, it is crystal clear that over writing had been made in the Date of Birth mentioned in words and in figures. It is further observed that the same page at the place of Date of Birth was found torn, even a piece of said Page of "1-1/2 cut and taken out from the end of said column and thereafter a scotch tape was affixed on the said column. It is further observed that in the bottom of the column of Date of Birth, there is a column for "Academic qualification" wherein firstly the qualification of the respondent (Employee) mentioned by ink pen writing as, "Primary" and thereafter putting a sign of (/) and written "Matric" with ball point. It is further observed that in the bottom of column for Date of Birth another hand written line is mentioned, "As per matric certificate No, SSC 008402 dated 19-01- 1980 cutting attested and signed."
14. It is further observed from the certain forms attached with service book for nomination of spouse for receiving provident funds and group insurance etc, wherein earlier date of birth was written with "Ink Pei" as 25-12-1960 and thereafter had been altered and overwritten the figure "60" as "56 after 19" with another pen which is crystal visible, while the date 25-12 is intact in all three forms of group insurance etc. The same forms were prepared and filled on 27-04-1981 and duly signed by SDO Operation Sub-Division Quetta.
15. It is pertinent to mention here that the person who was tried to do such tampering/overwriting, though succeeded to some extent on overwriting the Date of Birth in words and figures on the first Page of service book, but did not succeeded to cover the same overwriting and tampering on the aforesaid forms due to hurry, only tampered the figure of year i.e, 60 to 56 but the date mentioned as 25-12 was remained unchanged.
16. It is further reveals from the findings of the inquiry committee constituted by the appellant No, 1 comprising six Officers for determination of age of respondent held its meeting on 04-12-2014, under Para 4 (b) (iii) of its fact findings: "in the instant case overwriting/cutting is found."
17. It is specifically admitted by the inquiry committee that overwriting/cutting was found in the record, but the committee failed to E fix responsibility to the persons under who's safe custody such glaring illegality and irregularity was took place. The inquiry committee was trying to cover the said illegality and irregularity by determining age of the respondent that he was appointed in the age of 18 years by means of presumptions instead of relying upon any documentary evidence, as mentioned by the committee in its findings that at the time of appointment the qualification of respondent was primary. It means that the committee failed to bring the factual position on record, i.e, the application filed by the respondent for the post appointed against, what particulars were mentioned or documents annexed with the application relied by the respondent at the time of applying/joining the post. From examination of aforesaid such documents, the determination of the actual Date of Birth of the respondent could have been more easy and convenient, hence it is observed that the committee deliberately and intentionally concealed the said facts and the inquiry proceedings, which took place surreptitiously in a clandestine manner at the back of the respondent, he was condemned unheard by the inquiry committee, as such findings of the inquiry committee, are arbitrary, capricious, void ab initio, mala fide, tainted with malice, of no legal effect.
18. To resolve the moot question pertaining to tampering the Date of Birth of respondent in service book, the following questions are important to decide the issue. i. Whether after appointment of respondent his service book was maintained and kept in the custody of the appellants?
Whether the tampering/overwriting made in the service book during the custody of the appellants?
19. Of course the answers would be in affirmatives, admittedly the respondent was appointed by the appellants, his service book was maintained by the appellant and was in the custody of the appellants and beyond the access of the respondent and the Learned Trial Court after proper appreciation and examination of record had rightly decided the issue "3' in favour of the respondent and against the appellants, and the appellants have been failed to produce a single iota of evidence that the service book was not tampered in their custody.
20. The main objection of the learned counsel for the appellant was that, as per settled principle of law, the date of birth of an employee once recorded in the service book cannot be changed after prescribed period i.e, two year, from the date of appointment. No doubt this is settled principle of law, but in the case in hand the matter .Is quite different, the claim of respondent is that, his date of birth was tampered and had been over written in the service book in the custody of appellant, hence to that extent the respondent has been succeeded to prove its case, the overwriting and tampering had been proved on examination of the original record, service book and annexed original group insurance forms, moreover the matriculate certificate and CNIC, support the contention of the respondent though obtained after his appointment but neither denied nor disputed, rather recorded in his service book by the appellants, even duly attested in service book by the appellants. Hence, there is no cavil for the appellants to deviate, approbate or reprobate on the same subject on same breath. As such for the gross negligence and illegalities of the authorities, the respondent could not be penalized, even otherwise, no specific ground was taken by the appellants in the instant appeal, accordingly the objection has not sustained and rejected. It was depricated by the Hon'ble Supreme Court in .Secretary to Government of N.W.-F. P. Zakat/Soaal Welfare Department, Peshawar v. Sadullah Khan 1996 SCM R 413 where a Full Bench cognizant of similar circumstances has observed that the department having itself appointed civil servant in violation of rules could not be allowed subsequently to turn around and take benefit of its own lapses in order to terminate the services of a civil servant. The Department having itself committed irregularity, and having itself violated the prescribed procedure cannot punish the civil servant for its own misdeeds and after the lapse of a considerable time during which the civil servant has satisfactorily performed his duties.
21. For the reason discussed hereinabove, the learned counsel for the appellant has failed to point out any material illegality or irregularity in the impugned judgment for interference by this Tribunal, the judgment impugned dated 30-06-2015 passed by the learned 1st Labour Court is maintained.
Accordingly appeal is being devoid of merits is hereby dismissed with no order as to cost.
22. The copy of Judgment along with original record of Trial Court be sent to Trial Court. Case after completion be consigned to record.
23. GIVEN under my hand and seal of the Court on 18th November, 2015.