Through this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioner-department has assailed the judgment dated 24.06.2015 passed by respondent No.1/Punjab Labour Appellate Tribunal, Lahore whereby the judgment dated 29.11.2013 passed by respondent No.2/Punjab Labour Court No.1, Lahore, was upheld.
2. Concisely, the facts necessary for disposal of this constitutional petition are that respondent No.3 was appointed as Assistant Line Man on 14.02.1977 on work charge basis, his services were regularized on 26.12.1978 and he was also promoted to the rank of Line Man-II on 02.05.1981 and Line Man-I on 13.12.1993.
At the time of his appointment respondent No.3 provided his date of birth as 10.10.1960 and the same date of birth is mentioned in his matriculation certificate and Computerized National Identity Card. But due to tampering, the date of birth of respondent No.3 was written as 10.10.1950 in his Service Book. It is averred by respondent No.3 that in the year 2006 his date of birth i.e 10.10.1960 was disputed. Respondent No.3 produced his original matriculation certificate which was sent for verification to the Board of Intermediate and Secondary Education, Sargodha, who verified the genuineness of his matriculation certificate. Respondent No.3 further averred that in order to deprive him from his service the petitioner-department wrote a letter dated 25.01.2007 to Medical Superintendent WAPDA Complex, Lahore for determination/assessment of his date of birth. The petitioner-department vide impugned order dated 26.01.2009 changed the date of birth of respondent No.3 from 10.10.1960 to 10.10.1950.Feeling aggrieved, respondent No.3 challenged the said order in Writ Petition No.4267/2009 before this Court. In the light of judgment dated 15.12.2010 passed in the above said Writ Petition respondent No.3 was retired from service w.e.f 10.10.2010. Being dissatisfied with the said judgment, respondent No.3 sent a grievance notice to petitioner-department which was not replied and then he filed a petition before respondent No.2 which was accepted vide impugned judgment dated 29.11.2013. The petitioner-department filed appeal against the said judgment which was dismissed by respondent No.1. Hence, the present petition.
3. Learned counsel for petitioner-department contends that judgments of the learned Punjab Labour Court No.1, Lahore and learned Punjab Labour Appellate Tribunal, Lahore are the result of misreading and non-reading of oral as well as documentary evidence available on the record; that earlier writ petition filed by respondent No.3 before this Court was dismissed; and that regular enquiry was conducted whereby it was concluded that date of birth of respondent No.3 is 10.10.1950.
4. On the other hand, learned counsel for respondent No.3 supported the impugned judgments of learned Punjab Labour Court No.1, Lahore and learned Punjab Labour Appellate Tribunal, Lahore.
5. Heard. Record perused.
6. Respondent No.3 appeared as PW-2 in order to prove his case and tendered in his evidence photocopy of matriculation certificate (Exh.P/6), photocopy of old National Identity Card Mark P/B, Photo copy of CNIC Exh.P/7, final seniority list Exh.P/8, letter dated 09.05.2006 Exh.P/9, verification letter of Sargodha Board Exh.P/10, letter dated 25.07.201 1 regarding medical examination Exh.P/1 1, letter dated 26.06.2007 Exh.P/12, letter dated 15.12.2006 Exh.P/13, office order dated 26.01.2009 Exh.P/14, copy of judgment dated 15.12.2010 passed by this Court Exh.P/15, grievance notice Exh.P/16 and postal receipt Exh.P/17.
7. The case of the petitioner-department in reply to the grievance petition was that respondent No.3 is guilty of tampering/over writing of his date of birth i.e. 10.10.1950 into 10.10.1960. It will not be out of place to mention here that neither a single question nor any suggestion was put to respondent No.3 that he had tampered his date of birth from 10.10.1950 to 10.10.1960. Respondent No.3 was not confronted while conducting cross-examination that service book has been tampered by him.
8. In order to prove his case, the petitioner-department produced RW-1 Zameer Hussain, Manager HR LESCO.
He in his examination in chief stated that at the time of appointment the date of birth of respondent No.3 was written as 10.10.1950 in his Service Book which was subsequently changed as 10.10.1960. It will not be out of place to mention here that he had not stated that tampering of the date of birth had been made by respondent No.3. It is established principle of law that pleadings by themselves are not the proof and same are to be substantiated by producing evidence. As the petitioner-department has failed to substantiate his stance taken in the reply to the grievance petition by producing evidence, therefore, it can safely be said that the petitioner- department has miserably failed to establish that conversion of date of birth from 10.10.1950 to 10.10.1960 has been tampered by respondent No.3. It is also an established principle of law that pleadings are not evidence by themselves and do not prove the assertions made therein, rather the contents thereof have to be proved through testimony given on oath and subject to cross-examination by the other side. The pleadings which have not been confronted to the maker , are not sufficient to prove the contents of the same and cannot be read in evidence as proof of the contents stated therein. Further it has been held in a case reported as Mst. Khair -ul-Nisa and 6 others V. Malik Muhammad Ishaque and 2 others (PLD 1972 Supreme Court 25) that written statements are to be proved through evidence. The statements made in the written statement are not on oath. They are only verified and, therefore, they cannot be treated as evidence in the case. In a case reported as Muhammad Saleh V. Deputy Commissioner , Tharparkar at Mirpurkhas and others [PLD 1963 (W.P.) Karachi 613] it has been held that the pleadings cannot take the place of evidence. In another case reported as Taj Muhammad V. Raza Haider and another (1993 MLD 2450 ) it has been held that the pleadings are not the evidence in the case. In another case reported as Nizamuddin V. Qamaruddin Jaffar Vallani and another (1991 CLC 1937 ) it has been held that there is no cavil for the proposition that the pleadings cannot be treated as a substitute for the evidence. Further reliance in this regard is placed on a case reported as Muhammad Ilyas and others V. Muhammad Sharif and others (2001 CLC 1194). In another case reported as Muhamamd Nawaz alias Nawaza and others V. Member Judicial Board of Revenue and others (2014 SCMR 914) it has been held by the Hon'ble Supreme Court of Pakistan that the averments made in the pleadings do not constitute evidence.
9. Respondent No.3 has produced on record convincing evidence in the shape of Matriculation Certificate which is Exh.P/6, which was got verified by the petitioner-department from Sargodha Board who verified the date of birth of respondent No.3 as 10.10.196 0. The said verification has not been challenged by the petitioner- department, therefore, it will be presumed that they have accepted the verification as correct. Reference may be made to a case reported as Sher Baz Khan and others V. Mst. Malkn i Sahibzadi Tiwana and others (PLD 2003 Supreme Court 849) wherein the Hon'ble Supreme Court of Pakistan has authoritatively held that in preference to the oral or other version with regard to the age, the one recorded in matriculation certificate would be considered as unimpeachable evidence. In another case reported as Muhammad Arshad and another V. Mian Noor Ahmad and others (2008 SCMR 713), the Hon'ble Supreme Court of Pakistan has given preference to the matriculation certificate issued by the Board of Intermediate and Secondary Education, Karachi as compared to other documents i.e birth certificate and National Identity Card. In another case reported as Malik Muhammad Faisal and another V.
State Life Insurance Corporation through Chairman, Karachi and 2 others (PLD 2007 Lahore 453) this Court has held that the correct and true date of birth would be the one as recorded in the school/Board record being earliest in time.
10. Exh.P/8, which is final seniority list of ALM/LESCO issued by the petitioner-de partment also bears the date of birth of respondent No.3 as 10.10.1960. The same is the case with NIC Exh.P /7, which bears date of birth of respondent No.3 as 10.10.1960. It will not be out of place to mention here that in the Matriculation Certificate of respondent No.3 issued by BISE, Sargodha on 30.06.1976 the date of birth of respondent No.3 has been recorded as 10.10.1960 whereas respondent No.3 has joined his service on 14.02.1977, therefore, there is no chance of tampering in the said certificate of respondent No.3.
11. On the other hand, petitioner-department heavily relied upon Exh.R/2 (report of Scrutiny Committee qua date of birth of respondent No.3), whereby date of birth of respondent No.3 was determined by Scrutiny Committee as 10.10.1950. From bare perusal of this document, it appears that same has been passed/issued without associating respondent No.3 with the proceedings of the Committee which is against the principle of natural justice. No further document has been placed on record by petitioner-department whereby it can show that respondent No.3 has been given chance of producing his evidenc e or conducting cross examination on the witness of the petitioner- department. Therefore, this document carries no weight in the eye of law. It is a principle of natural justice that no one should be dealt with to his material disadvantage or deprived of his liberty or property without having an opportunity of being heard and making his defence. Reliance in this regard is placed on a case reported as Chief Commissioner, Karachi and another V. Mrs. Dina Sohrab Katrak (PLD 1959 Supreme Court (Pak.) 45).
Further reliance is placed on cases titled Messrs Fardsons Ltd, Karachi V. Government of Pakistan, through its Secretary, Ministry of Commerce, Karachi (PLD 1961 Supreme Court 537), Province of East Pakistan and another V. Nur Ahmad and another (PLD 1964 Supreme Court 451) and Abdus Saboor Khan V. Karachi University (PLD 1966 Supreme Court 536). As respondent No.3 has not been heard by the Scrutiny Committee constituted for determination of his correct date of birth, therefore, the age determined by the said Committee is nullity in the eye of law and has no legal effect. Reliance in this regard is placed on Superintendent of Police, Special Branch, Karachi and others V. Abubakar and another (1972 SCMR 154) and Rehmat Ullah and another V. The Secretary, Evacuee Property Trust Board, Government of Pakistan, Lahore and 2 others (1972 SCMR 168). Even the principle of natural justice is equally applicable in administrative act affecting the right of a person, in property, or status or otherwise bringing a penal consequences, opportunity to show cause must be given.Reliance in this regard is placed on a case reported as Mian Ghulam Muhammad V.
The Collector, Montgomery and 2 others (PLD 1973 Lahore 528). It has been held in a case reported as Messrs Capital Sports Corporation, Sialkot V. Government of Pakistan (1989 MLD 999) that no party can be condemned unheard on the basis of inquiry conducted behind his back and without his knowledge, and without giving him an opportunity of even looking at it or rebutting it. Further reliance is placed in this regard on a case reported as Mesrs Farooq International V. The Chief Controller of Imports and Exports and 4 others (1985 CLC 1781).
12. It appears from the record that respondent No.3 also produced one Muhammad Akram as PW-1 who recorded his statement and also got exhibited copy of Matriculation Certificate as Exh.P/2, copy of service book Exh.P/3 and office order dated 09.03.2006 Exh.P/4. It will not be out of place to mention here that age of said Muhammad Akram has been recorded in the matriculation certificate as 06.12.1947. In his service book Exh.P/3, his date of birth appears to be tampered as 06.12.1947. It appears from Exh.P/4, which is order dated 09.03.2006 that the petitioner-department accepted the date of birth of said PW-1 as 06.12.1947 while relying upon his Matriculation Certificate. If the date of birth of PW-1 could be considered to be 06.12.1947 while relying upon his matriculation certificate then why the same treatment has not been given to respondent No.3.
This is a case of clear discrimination which is violation of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973.
13. One objection of the petitioner-department is that earlier writ petition of respondent No.3 filed before this Court was dismissed, therefore, grievance petition was not competent. It will be pertinent to mention here that said writ petition was dismissed on technical grounds involving factual controversies that the rules of the petitioner- department are non-statutory and that respondent No.3 has not impleaded WAPDA nor LESCO as party . However , in the same order , it was held that respondent No.3 has other remedies available to him where he can agitate the matter and seek relief on the basis of evidence produced by him, therefore, objection is ill-founded.
14. It has been admitted by the petitioner-department that record of the service book of respondent No.3 was in the custody of the department. If respondent No.3 has tampered the said record that could not be possible without involvement of employee in whose custody the records are kept but no employee has been proceeded by the petitioner-department by initiating departmental/criminal proceedings. Therefore, to say that respondent No.3 has tampered the record is not tenable. Reference may be made to the case titled as "Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others" (2004 SCMR 303), it has been held by the Hon'ble Supreme Court of Pakistan that "competent authorities should be held responsible and liable for the said lapse on their part." In another case titled as "Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others" (2004 SCMR 1077 ), wherein it has been held by Hon'ble Supreme Court of Pakistan that "instead of removing the employees from service, action should be taken against the authority who wrongly exercised its powers." Further reference may also be made to case titled as "Province of Punjab through Secretary , Agriculture, Government of Punjab and others v. Zulfiqar Ali" (2006 SCMR 678), wherein it has been held by Hon'ble Supreme Court of Pakistan that "In other words in such like situation instead of taking action against an appointee it is appropriate if an action is taken against the Appointing Authority who apparently committed a misconduct by making such appointment." Further reference may be made to the case titled "Abdul Hafeez Abbasi and others v. Managing Director , Pakistan International Airlines Corporation, Karachi and others"
(2002 SCMR 1034 ), wherein after considering facts and circumstances of the case Hon'ble Supreme Court of Pakistan has held as under:- "Therefore, we are of the opinion that in such situation besides proceedings against the beneficiaries of so-called illegal appointments the officers who were responsible for implementing illegal directives should also be held equally responsible and severe action should be taken against them so in future it may serve as a deterrent for other like-minded persons. "
15. The other objection of the petitioner-department that date of birth could only be changed within two years from the date of joining is also ill-founded as respondent No.3 had not applied for change in his date of birth but it was the petitioner-department who initiated proceedings about the change of date of birth of respondent No.3, therefore, the reliance of learned counsel for the petitioner-department upon Rule 5 of the Pakistan WAPDA Employees (Date of Birth) Rules, 1994 is not applicable to the case in hand. In case reported as "Administrative Committee of High Court of Sindh through Registrar, High Court of Sindh, Karachi and another v. Arjun Ram K.
Talreja and another" (2008 SCMR 255) it has been held by the Hon'ble Supreme Court of Pakistan that "it is not an absolute rule that once any entry of date of birth has been made it cannot be altered or changed." In another case reported as Ghulam Hussain V. PB.Labour Appellate Tribunal, etc. (NLR 1991 Labour 1) it has been held that "it would be in consonance with the rule of justice and equity that the benefit of doubt in the matter of age should go to the employee/public servant and not to the employer/Government.
16. No medical report has been produced by the petitioner-department qua age of respondent No.3. It is simple medical test which was conducted at the time of induction into service and same has no concern with the ossification test/date of birth of respondent No.3.
17. The findings of the learned Punjab Labour Court No.1, Lahore and learned Punjab Labour Appellate Tribunal, Lahore are concurrent, therefore, do not call for any interference by this Court. This Court cannot interfere into the concurrent findings of the learned Punjab Labour Court No.1, Lahore and learned Punjab Labour Appellate Tribunal, Lahore recorded after due asse ssment of evidence as a Court of appeal. Reference may be made to the case law reported as "Ghulam Muhammad and another v. Mst. Noor Bibi and 5 others" (1980 SCMR 933). The relevant portion of the judgment is reproduced herein below:- "we agree with the view taken by the High Court that it could not in its limited constitutional Jurisdiction interfere with the concurrent findings against the petitioner -departments on what was essentially a question of fact."
Further reference may be made to the cases reported as "Allah Ditta v. Ahmed Ali Shah and others" (2003 SCMR 1202 ) and "Mst. Farah Naz v . Judge Family Court, Sahiwal and others" (PLD 2006 Supreme Court 457).
17. Learned counsel for the petitioner-department has failed to point out any illegality and jurisdictional defect in the impugned judgments of the learned Punjab Labour Court No.1, Lahore and learned Punjab Labour Appellate Tribunal, Lahore.
18. Sequel to the above, this writ petition being devoid of any force is dismissed and the judgments dated 29.11.2013 and 24.06.2015 passed by the learned Punjab Labour Court No.1, Lahore and learned Punjab Labour Appellate Tribunal, Lahore, respectively , are upheld. No order as to cost.