MRS. ERUM SAJAD GUL, CHAIRMAN.----The afore titled appeal has been directed against the impugned judgment dated 03.04.2019 passed by learned Punjab Labour Court No.VII, Gujranwala.
2. Brief facts of the case as per grievance petition are that the respondent claimed that his original date of birth is 01.07.1960 which is recorded in all his relevant documents. That at the time of joining service, appellants prepared his service book wherein the same date of birth was incorporated. That the record of the appellant department was burnt in year 2010 in which the service record of the respondent and other employees was also destroyed. That during the said period when the service record of the respondent was reconstructed, his date of birth was wrongly incorporated by NADRA in his CNIC as year 1956, due to which the appellant department retired the respondent on the basis of his date of birth as recorded in his identity card. That the respondent then corrected his date of birth through the Court having jurisdiction in the matter. That the respondent moved a petition before the appellants for correction of his date of birth and not to retire him pre-maturely but his grievance was not redressed. After which he filed a grievance petition before the Labour Court.
3. The grievance petition was adjudicated upon. The learned Punjab Labour Court No. VII, Gujranwala after recording of oral evidence, considering documentary evidence of the parties and fulfillment of other codal formalities decided the grievance petition in the following terms:- "8. The accumulative effect of the above discussion is that petitioner has succeeded to establish that his date of birth is 01.07.1960 and the respondent department has prematurely retired the petitioner from his service. In view thereof, the respondent's department is directed to correct date of birth of petitioner in its record as 01.07.1960 and allow him to continue his service till the age of his superannuation. The respondents Nos.1 and 2 are directed to issue fresh seniority list strictly in accordance with Rule 8(1)(b) of PCS (A&CS) Rules, 1974, taking into consideration date of birth of the petitioner and his colleagues. This judgment will be implemented within two weeks positively. File be consigned to the record room after its due completion and compilation."
4. Learned counsel for the appellants, inter alia, contended that the grievance notice was time barred therefore the grievance petition was not competent. Further argued that the appellant department is following the WAPDA Date of Birth Rules, 1994 according to which an employee's date of birth once recorded at the time of joining service shall be final and no change in the date of birth was permissible under Rule 12A.
Further argued that a decree passed by the Civil Court is not legal and not binding on the appellants as they were not made a party before the Civil Court. Further argued that photo copies were not admissible in evidence. Finally contended that the afore titled appeal be accepted and the impugned judgment of the Labour Court be set aside. The counsel relied upon 1994 SCMR 683, 2002 PLC (C.S.) 970 and 2013 SCMR 759.
5. Conversely learned counsel for the respondent vehemently opposed the arguments and grounds raised in the memo. of appeal and argued in favour of the impugned judgment. Further argued that the grievance notice is within time as RW1 admitted that the appellant department paid salary to the respondent till December, 2016. Further argued that the respondent approached the court of competent jurisdiction for correction of his date of birth. Contended that all the documents except Exh.R1 have been produced by the respondent before the Trial Court on which no objection was raised by the appellant. Also argued that in his service book his date of birth has been incorporated as 01.07.1960 which is correct. Further argued that an employee after two years can approach the Court for correction of his date of birth. The Counsel relied upon 2011 PLC (C.S.) 35 and 1997 SCMR 1128.
6. Arguments have been heard and the available record with the appeal has been perused.
7. The controversy between the parties is regarding date of birth of the respondent. The respondent is claiming that his date of birth is 01/07/1960 which was incorrectly incorporated by the appellant Department as year 1956. While the appellant Department's stand is that to avoid his retirement the respondent is malafidely claiming that his date of birth is the year 1960 instead of the year 1956.
8. The respondent sent a grievance notice Exh.P-2 to Exh.P-4 to the appellant Department for the first time on 07/02/2017 praying that within fifteen days the office order dated 30/12/2015 (Exh.R-1) regarding his retirement be set aside and respondent's correct date of birth 01/07/1960 be incorporated in the office record after which he be reinstated in service till his correct age of superannuation. As grievance notice was not replied to, the respondent filed a grievance petition on 03/03/2017 with the same prayer. The appellant Department filed their reply to the grievance petition before the Labour Court and denied the contents of the grievance petition and stated that vide office order dated 30/12/2015 the respondent on reaching his age of superannuation was retired from service and the respondent accepted the encashment of LPR for 365 days. Further stated that the grievance petition was hopelessly time-barred therefore be dismissed on merits as well as on limitation.
9. The appellant with their appeal filed an application under Order XLI, Rule 27, C.P.C. for production of additional evidence. The respondent counsel did not raise any objection to this application neither denied the authenticity of the certified documents exhibited. According to Rule 27 of Order XLI, C.P.C. if the Appellate Court requires any document to be produced or any witness to be examined so as to enable it for a just decision of the case the Appellate Court may allow such evidence or documents to be produced before it. The respondent three months prior to his retirement on 05/09/2015 admittedly filed a suit for Declaration before the Civil Court praying that a declaratory decree may be passed in his favour directing .NADRA to issue a corrected CNIC showing his date of birth as 01/07/1960 instead of the year 1956 and his name be corrected as Farzand Ali son of Mohd.
Yousaf instead of Ch. Farzand Ali Rajput son of Chaudhry Mohd Yousaf. It is pertinent to mention, here that in the suit for declaration the appellant department was not made a party and only NADRA was made a party.
NADRA submitted their written reply to the suit and in paragragh number three stated that the respondent's first CNIC was prepared in the year 1979 according to which his date of birth was year 1956. For reference the said paragraph is reproduced as under:- {URDU TEXT} In the end of the reply it was prayed that the limitation period provided by NADRA to correct the contents of CNIC was six years. Further prayed that the respondent was issued his first CNIC 36 years ago and as more than twelve years had passed since the respondent was issued his computerized CNIC therefore his suit Was not maintainable. The said prayed is reproduced as under:- {URDU TEXT}
10. The Civil Court without considering the reply of NADRA or calling for the recor d of NADRA so as to verify that the date of birth of the respondent was recorded as year 1956 since the respond ent was issued his CNIC in the year 1979, accepted the suit of declaration of the respondent on 29.10.2015. Operative part of the Judgment of the Civil Court is reproduced as under:- "10. In the light of the findings of issue No.1, Suit of plaintif f is hereby decreed and plaintif f name, parentage and date of birth is declared as Farzand Ali son of Muhammad Yousaf and date of birth is 01.07.1960. Defendant No.1 is directed to correct his record. No order as to cost. Decree sheet be prepared. Ahlmad Tahir Kabir Bajwa is directed to consign the file to the record room after its due completion and compilation."
11. The respondent appeared before the Trial Court as PW 1 and in his cross-examination admitted that the Department had incorporated his date of birth as year 1956 in their record according to his first CNIC. By accepting this fact the respondent contradicted the contents of his grievance petition that in his first CNIC his date of birth was incorporated as the year 1960. The respondent did not exhibit his first CNIC to prove that initially NADRA recorded his date of birth as the year 1960. The respondent strangely never made any efforts to correct his date of birth all these years and just few months before his retirement without informing his department secretly filed a civil suit and managed to get a decree in his favour declaring his date of birth as year 1960. It has been held by the Hon'ble Supreme Court of Pakistan in 1994 SCMR 1633 titled M.R. Khalid v. Chief Secretary, Punjab and another" that merely obtaining a decree from the Civil Court for correction of date of birth by an employee was of no consequence if the government department is not made a party in the said suit. Also held that if an employee remained silent during the major period of his service knowing he would not get a favourable decision in his favour from the Department regarding correction of his date of birth would go against him. The Hon'ble Supreme Court of Pakistan in this case refused leave to appeal to the employee. The Hon'ble Supreme Court of Pakistan has held in 1998 SCMR 1494 titled Syed Iqbal Haider v. Federation of Pakistan that an employee could change his date of birth within two years of joining service and not later .
12. It appears that the respondent has taken the advantage of the incidence of the fire that broke in the record room of the Department in the year 2010 destroying the record of the year 1982 till the year 2010. The school leaving certificate of the respondent Exh.P-9 is shown to be issued to him on 04/08/2015 that is few days before he instituted his civil suit. The said certificate is a photocopy and shows that the respondent was admitted in the school for barely six months. The date of birth in this certificate in words is year sixty seven and in digits is 01/07/1960. The school leaving certificate of the respondent being a photocopy could not be relied upon as an authentic piece of evidence for changing the date of birth of the respondent when NADRA clearly stated that date of birth of the respondent is the year 1956 recorded with them since 36 years.
Regarding the birth certificate Exh.P8 which was produced by the respondent before the Civil Court the question arises as to why this birth certificate was not submitted with NADRA thirty six years ago when his first CNIC was issued. It is pertinent to mention here that the respondent has only exhibited his CNIC as Exh.P13, in which his date of birth is shown as year 1956. Meaning thereby that still in the NADRA record the date of birth of the respondent is recorded as the year 1956 and not the year 1960. For the correction of his date of birth in NADRA the respondent had to follow NADRA's procedure which apparently he has not. As according to NADRA the matter was hopelessly time barred and the date of birth of the respondent since 36 years is recorded as the year 1956 according to the documents provided by him to NADRA.
13. In view of what has been reiterated above the afore titled appeal is accepted and the impugned Judgment dated 03.04.2019 of Punjab Labour Court No.VII, Gujranwala is set aside.