DECISION This appeal is directed against the decision of the learned Fifth Labour Court, given on 20th July.
1981, dismissing his grievance petition against -the order, dated 16th April, 1978 of the respondent Corporation retiring the appellant on superannuation on attaining the age of sixty years.
2. The facts of this case, shortly stated, are that the appellant was originally employed by M/s. Muhammadi Steamship Co., Ltd. On or about 16th December, 1963. On nationalization of the said company and its merger with the Pakistan National Shipping Corporation, the services of the appellant were taken over by the latter corporation. There is a workers' Union in the respondent- Corporation known as the Pakistan Shipping Corporation Workers' Union. It appears that in about 1976 the appellant was elected as General Secretary of the said Workers' Union. It is claimed that the said union had been agitating for provision of better facilities and benefits to the workers in the respondent Corporation. On 16th April, 1978 the appellant was retired from the service of the respondent Corporation on the ground that he had attained the age of sixty years which was the age of superannuation in the respondent Corporation. The appellant objected to his retirement on the ground that no specific age of superannuation had been fixed for the Employees of the respondent Corporation but his objections were rejected' by the respondent Corporation. The appellant, accordingly, preferred a grievance petition against his retirement before the learned Labour Court which had dismissed the same by its impugned decision.
3. I have heard Mr. Ali Amjad, the learned counsel for the appellant, and Mr. Mushtaq Ahmed Shaikh, who represented the respondent Corporation.
4. The first contention of Mr. Ali Amjad was that no age for super--annuation had been fixed. For the employees of the respondent Corporation and, accordingly, the order retiring the appellant on attaining the age of sixty years was unsustainable in law. The learned counsel sought to rely in support of his contention upon paragraph 2 of the settlement arrived at on 28th April, 1973 between the Muhammadi Steamship Co., Ltd., and the C. B. A. Therein, according to the said settlement it was agreed that no employee was to be retired from the company's service on account of old age until he is in good health and capable to attend his usual work satisfactorily. The duration of this settlement, however, was only for a period of one year and the period of its operation expired by efflux of time. Moreover, on the nationalization of Muhammadi Steamship Co. Ltd. It has ceased to exist and its employees and assets were taken over by the respondent Corporation. Furthermore, on 8th November, 1977, the Board of Directors of the respondent Corporation passed a resolution fixing the age of superannuation of its employees at sixty years. The said Resolution reads as follows :- " Employees over the age of 60 to be retired from service with effect from 31st December, 1977, except those employed on Contract, and given three months ex gratia salary."
5. It appears that in pursuance of the said Resolution a number of employees have been retired on obtaining the age of sixty years and as, many as 14 employees were retired on 1st February, 1978. 1 am, therefore, satisfied that the age of superannuation in the respondent corporation for its employees was fixed at sixty years.
6. It was next contended by Mr. Ali Amjad that the appellant had not attained the age of sixty years when he was retired on superannuation on 16th April, 1978. Mr. Ali Amjad relied on two pieces of evidence in support of his contention. The first is the statement of the services of the appellant in the Army Reserve Services, which appears at pages 97 to 101 of the record of the learned Labour Court . 'According to the settlement, the date of birth of the appellant was 18th April, 1919 and he had joined the Army Reserve Service on 23rd April. 1936 when he was 17 years of age. The Second piece of evidence relied upon by Mr. Ali Amjad in this behalf is the certificate from the Imperial Chemical Industries (Pakistan) Limited (I. C. I.), dated 1st November, 1955 certifying that the appellant had joined the 1. C. I. On 8th April, 1946 and that his date of birth on the record of the company was 18th April, 1919. It may be pointed out that according to the Circular of the respondent corporation, dated 31st January, 1978, discharge certificate from the previous service would be one of the documents to be taken into consideration in fixation of the age of the employee. The two documents relied upon by Mr. Ali Amjad would, thus, be very material for the purposes of determining whether the appellant had attained the age of sixty years on 16th April, 1978 when he was retired from the service of the respondent Corporation. These two documents clearly support the stand of the appellant that his date of birth was 18th April, 1919 and that he had not attained - the age of superannuation when he was made to retire from the service of the respondent Corporation. Mr. Mushtaq Ahmed, the learned counsel for the respondent Corporation, however, sought to argue that the documents relied upon by Mr. Ali Amjad were photostat copies and, therefore, could not be relied upon. To meet this objection of Mr. Mushtaq Ahmed, Mr. Ali Amjad produced before me the original documents, including the statement of service of the appellant in the Army Reserve Service.
7. Mr. Mushtaq Ahmed next sought to rely upon the. List of employees of Muhammadi Steamship Co. Ltd., which, according to him, was received by the respondent Corporation when. It took over the employees of the Muhammadi Steamship Co. Ltd. In that list, of which only a photostat copy has been furnished, the age of the appellant has been shown as 58 years. Even if the entry in this list be considered to be accurate, since the age of the appellant has been shown as on 1st January, 1977, as appears from the heading of the list, appellant did not attain the age of sixty years till 1979.
Mr. Mushtaq Ahmed also relied upon another list of the staff members of the Muhammadi Steamship Co. Ltd. Furnished in the year 1973 to the State Life Insurance Corporation of Pakistan for the purposes of Group Insurance of their employees. In that list, of which a photostat copy has been furnished, the date of birth of the appellant has been shown as 18th April, 1918. In view of other pieces of evidence, which have been discussed above and which clearly indicate that the date of birth of the appellant was 18th April, 1919, the entry in this list supplied to the State Life Insurance Corporation would appear to be incorrect. It may further be pointed out that this list does not bear the signature of the appellant and hence he had no knowledge as to what was the date of birth which was communicated to the State Life Insurance Corporation of Pakistan
8. It was also sought to be argued by Mr. Mushtaq Ahmed that the appellant was not an aggrieved person as h; has received all his dues in full and final settlement and hence was not entitled to file and maintain a grievance petition It is, however, clear from the documents evidencing.' payment to the appellant that the latter had received payment under objection and protest. These payments, therefore, do not bar the right of the appellant to file a grievance petition.
9. I am satisfied, on consideration of the entire evidence in the case that the age of superannuation in the respondent Corporation as sixty years and that the appellant was born on 18th April, 1919 and should have been retired on the afternoon of 17th April, 1979 and not on 18th April, 1978 as has been done by the respondent Corporation. I would, therefore, direct that the appellant should be deemed to have been in' the service of the respondent until the afternoon of 17th April, 1979. I, however, am not inclined to award full back benefits to the appellant. When the appellant was retired from service vide letter, dated 18th April, 1978, he furnished no evidence to the respondent corporation about his age and particularly did not bring to the notice of the respondent Corporation the statement of his service in the Army Reserve Service and the Certificate, dated Ist November, 1955, from the I. C. I. Even prior to the issuance of the order of his superannuation he did not bring these documents to the notice of the respondent Corporation,, despite the fact that by circular dated 31st January, 1978, all employees of the respondent Corporation were advised in their own interest to submit thee proof of their age to the Assistant Manager, Personal and Training, by 15th February, 1978 failing which the management's decision with regard to the fixation of age was to be considered final. Taking all these facts into consideration I would award the appellant only fifty per cent back benefits.