This appeal is directed against the decision of the learned VIIth Labour Court, given on 21st October, 1981, dismissing the grievance petition filed by the appellant workman, challenging the order by which he was to retire with effect from 31st October, 1981, when according to the management, he would have crossed the age of 60 years as per their record.
2. The appellant has been in the service of -the respondent-Company since several years. It appears that in about 1955, the management wanted to have record of the respective ages of their workmen. In the case of work--men whose proper record of age was either not produced or not available the management required such workmen to appear before their Medical Officer and on the basis of the opinion of the Medical Officer as to the age, their respective ages were entered in the record of the respondent-Company. According to the appellant, when he came to know that his age has been wrongly entered in the registers of the respondent-Company, he made rep-- resentation to the respondent company in this behalf. The management, however, declined to reconsider the matter of the appellant's age and by an office order, dated 8th August, 1981, he was informed that it had been decided to retire him with effect from 31st October, 1981, as according to their record, he would be attaining the age of 60 years on 26th October, 1981. Prior to this office order, the appellant had made 2 representations to the management, accompanied, by his school Leaving Certificate, showing his date of birth but both these representations were turned down by the management on the sole ground that only the Matriculation Certificate would be considered proper proof by the management for the age of the Workmen. Aggrieved by the order fixing the date of his retirement as 31st October, 1981, the appellant preferred a grievance petition before the learned Labour Court which was dismissed by the impugned decision.
3. Mr. Mahmood A. Ghani, the learned counsel for the respondent-- Company, sought to support the impugned decision of the learned Labour Court on the ground that the grievance petition was belated and hence in the words of the learned Labour Court , "it suffered from laches". Elaborating his arguments on this issue, it was submitted by Mr. Mahmood Ghani that it was not disputed that a medical examination of the Rohri Cement Workers took place in 1955 and that on the basis of the opinion of the Medical Officer the respective ages of the workmen were entered in the record of the respon--dent-Company. The learned counsel further submitted that due intimation of his age as opined by the Medical Officer was given to the appellant. The learned counsel sought-to rely on this point on the document which appears at page 41 of the record of the learned Labour Court . It is a Memo. From the respondent-Company to the appellant workmen intimating him that his age lead been recorded in the books of the company as 34 years on 27th October, 1955, in accordance with the medical certificate. There is, however, no tangible evidence to indicate that this Memo was served upon the appellant. Undoubtedly the Memo. Bears a thumb-impression but the appellant denied that this thumb-impression was his. The memo. Was sent to the handwriting expert with the admitted thumb-impressions of the appellant, but the hand writing expert was unable to give his opinion as the thumb-impression on the Memo in question was totally blurred and unfit for comparison. There appears to be another strong reason for arriving at the conclusion that this Memo. Was not served upon the appellant. As will be presently shown the appellant had studied in the Patni Primary School for 3/4 years and hence he at least should have been able to sign a document and there was no reason that he would affix his thumb-impression on the Memo.
In question. I have looked at the grievance petition and the affidavit of the appellant and find that they bear, his signatures. The Vakalatnama which the appellant had executed in favour of his learned counsel also bears his signature. No document has been produced either by the respondent-Com--pany or by the appellant which bears the thumb-impression of the appellant.
In the circumstances, I am inclined to the view that the thumb impression on the Memo. Dated 8th December, 1955 does not appear to be of the appellant and the memo. Was not received by the appellant.
4. It was, however, sought to be argued by Mr. Mahmood Ghani that according to the appellant, he had come to know in 1955, when he was medically examined, that his age had been determined by the Medical Officer as 34 years and this could only be on the basis of the Memo. Dated 8th December, 1955. Mr. Mahmood Ghani sought to rely in support of this contention on the appellant's grievance notice wherein it has been con--tended that some 25 years ago, the Doctor had determined his age incorrectly and some of the employees whose ages had been incorrectly mentioned had made representations and produced proof in support of their correct age and that he had also made representation in this behalf. A 'careful perusal of the grievance notice, however, leaves the point ambiguous as to. When exactly the appellant came to know about the alleged wrong entry of his date of birth in the books of the respondent-Company and when he. Made repre--sentations in this behalf. The receipt of the representations .From the appel--lant has been admitted by the respondent-Company in its reply statement. Furthermore, in the letter, dated 27th June, 1981. It is conceded by the management that it had been previously communicated to him that other than a Matriculation Certificate there could be no authentic proof of age. It is thus clear that since long the appellant had been making representations for correction of his age and date of birth in the record of the respondent--Company. The company, however, was not prepared to review the entry in. Their books in respect of the age of the appellant unless he produced a Matriculation Certificate which according to the company was the sole au--thentic proof in support of age. The company failed to realize that hardly any worker. And particularly the appellant, who was an ordinary operator, would have passed or appeared for the Matriculation examination and hence such a certificate could not be produced by such workers. As the appellant clearly had been agitating for the correction of his age as entered in the books of the company since 1955, it cannot be said that the appellants grievance petition suffered from latches or was hopelessly belated as appears from the view taken by the learned Labour Court
5. The matter may also be looked at from another aspect. The grie--vance of the appellant was that he was being retired with effect from 31st October, 1981. His grievance arose from the receipt by him of the order, dated 8th August, 1981. Exactly one month from the date of the said order, the appellant submitted his grievance notice to the management and as he received no redress, he filed the grievance petition on 27th September. 1981, before the learned Labour Court . Thus, both the grievance notice served by the appellant on the respondent-Company and his grievance peti--tion are well within the period as provided in section 25-A, I. R. O.
6. It next falls to be considered whether the age of the appellant as recorded in the books of the company is correct or incorrect. As already indicated, the appellant's age had been approximately fixed on the basis of the opinion of the Medical Officer of the respondent company. It is now well- settled that estimation of age by medical examination particularly if it is only through general or external observations, is liable to were variation and may be wrong, on either side, by at least 2/3 years. Even the medical authorities are fully conscious of the hazards in estimating age on the basis of clinical examination as pointed out by this Tribunal in the case of Rohr: Cement Works v.
Karim Bux, decided on 7th April, 1982. The Medical Officer of the respondent-Company appears to have been fully conscious o this position and hence has very wisely stated in his certificate that the appellant at the time when he was examined by the Medical Officer appeared, to be 34 years of age. As such the certificate itself shows that the estimation made by the Medical Officer was only approximate. As against this ap--proximate age as assessed by the Medical Officer, there is more convincing evidence regarding the correct age of the appellant in the form of entries , made in the Admission Register of Patm Primary School. According to" the entries of the School Register, which was produced by the Headmaster, of the Primary School, the appellant was admitted to the 1st standard of Patni Primary School on 25th May, 1938 and his date of birth was shown as 8th May, 1933. The present Headmaster who was examined by this Tribunal, stated that students are admitted in the 1st standard when they are 4/5. Years of age. The appellant thus appears to have sought admission in the school at the normal age of 5 years. The entries in the School Register further'-show that the appellant left the school on 2nd May, 1982, i.e. After studying. The school for about 4 years. The entries in the School Register are not only made in the ordinary course of the business of the school but were made more than 30 years ago. A double presumption `of correctness and genuineness thus attaches to the said entries under sections 114 and 90 of Evidence Act. The entries for admission in the register are for the period from 1934 upto 1955, when a fresh register appears to have been started as no space was available in the old register.
7. The upshot of the above discussion is that there is satisfactory evid--hence, in my opinion, to indicate that the correct date of birth of the appellant is 8th May 1933, as entered in the School Register of Patni Primary School. As such the appellant would be attaining 60 years of age on 7th May, 1983. The order, dated 8th August, 1981, deciding to retire the appellant with effect from 31st October, 1981, on the ground that he had crossed the age of 60 years, this is wrong and cannot be sustained. I would accordingly set aside the said order and direct that the appellant be reinstated in service and be allowed to continue to serve in the respondent---Company until he attains the age of 60 years on 7th May, 1983
8. There remains the question of back. Benefits for the period that the appell4nt was wrongly kept out of service with effect from 31st October, 1981. Although the appellant appears to have obtained the School Leaving Certificate as well as the extract from the School Register as early as 1969, according to his own admission, he did not produce the said certificate be--fore the authorities of the respondent company till 1981. It is true that the management claimed that it would rely only on the Matriculation Certificate, if any, but since the case of the appellant was based on the School Certificate, he ought to have brought it to the notice of the authorities, if not in 1955, at least as soon as he obtained a copy of Certificate. Taking all these circumstances into consideration, I would award 50% of the back benefits to the appellant. No doubt, in the preceding case of Karim Bux I had not awarded back benefits to Karim Bux, but there was additional cir--cumstance present in that case that the age assessed by the Medical Officer was at least partly based on the age which he had given to the Medical Officer.