' These two cases arise out of same facts and so at the instance of the parties hereto, both were consolidated by order dated 4th March, 1985 passed in Application No, 162/82. Accordingly, both these cases would be disposed of by this order.
2. Both the applicants were said to have been appointed in 1961. Bashir as Field-Charge- Man/Mechanic while Allah Bux as Junior Operator. On 23rd February, 1982 both were intimated that they would retire on their attaining the age of superannuation on 30th June, 1982. The applicants disputed their age as communicated to them by the respondent through notice dated 23rd February, 1982, but with no result. Both were however retired on 30th June 1982. Grievance notices were then sent by both the applicants on 6th July 1982 and having received no reply from the respondent, they approached this Court under section 25-A of I. R.
0., 1969 for their reinstatement with continuity of service and all back benefits. Their grievance in nutshell is that firstly their age was wrongly assessed and they have not yet attained the age of 60 years and secondly, that their final retirement order dated 1st July, 1982 was passed by an incompetent authority. Additionally it has also been pleaded that there is no age limit of retirement in the respondent establishment and many persons are still on job though they have already completed 60 years of age.
3. In reply statement, it has been pleaded that these applicants were converted from work- charged establishment into regular establishment and so their services are governed by the Government of Sind Civil Services Rules etc. Accordingly, provisions of S. O. Ordinance are not attracted. It has also been pleaded that the applicants were retired with effect from 30th June, 1982 because they had attained the age of 60 years and which age is prescribed for the retirement in the respondent establishment. Moreover, the age in record in the service books and as according to para 171 of Sind Civil Services Rules Volume I, the entries made cannot be revised or questioned unless there is an apparent clerical error. It has been further pleaded that the entries as to their age have been mentioned in the service books prepared in 1979 and the same were duly thumb marked by the applicant. They cannot therefore question the validity thereof. As to the termination letters, it has been contended that letters dated 23rd February, 1982 were issued by S.D.
0., Hirabad and further letter dated 30th June, 1982 was nothing but an information about their retirement. The maintainability of the petitions and applicability of I. R.
0., 1969 has also been assailed.
4. In support of their respective petitions applicants appeared as their witnesses and they also examined Wan Ahmed. On behalf of the respondent Muhammad Waris and Azizuddin Khan were examined. After evidence, I have heard Mr. Abdul Ghani Khan, Advocate for the applicants, and Mr. Iqbal Hussain Jafri, Advocate for the respondent. I have also considered the legal and factual position involved in these cases.
5. The first and most important point posed for consideration is whether the provisions of I. R.
0., 1969 and S.
0. Ordinance are applicable to the respondent establishment. In order to prove the applicability of these laws Mr. Ghani has placed reliance on the evidence of Wan Ahmed, who is said to be the General Secretary of C. B. A. Union in the respondent establishment, besides relying upon various pieces of evidence brought on record. He submits that admittedly a trade union is functioning with the status of C, B. A, in the respondent establishment right from the very beginning and the workers of this establishment are being dealt with under check of system as well. A number of settlements have also been arrived at between the management and C. B. A. Besides this the respondent is established to make developments of the area allocated to it, to maintain and provide water sewerage facilities etc. ; to the general public and also to sell plots of lands. In view of these functions, the establishment is covered by the definition of an "industry". Accordingly, provisions of I.
R.
0. Are fully applicable to it. On the other hand, Mr. Jafri submits that the respondent establishment has been established by the Government and is being financed by the Federal Government, Provincial Government and Asian Bank. It is not manufacturing or producing anything nor it is functioning on a commercial establishment. The facilities to be provided to the general public are on no profit no loss basis. However, he could not say how a C. B. A. Union is not only functioning in the establishment but it is also being recognized.
6. Under section 1(3) of I. R.
0., 1969, it applies to all persons except as detailed in subsection. As to the word "industry" has been defined to mean any business, trade, manufacture, callings, service, employment or occupation and if the functions of the respondent establishment are considered would be manifestly clear that this would be covered by the definition of an "industry". In fact only those persons have been specifically excluded who are either employed in the specific departments or who work in the Administration of State. In other words every Government employee would never be deemed to be employee in the Administration of State. The intention of the Legislature is to confer the benefits of Labour Laws on as many persons as would be covered by the definition of "work-men" and the phrase "employee in the Administration of the State" has to be strictly construed. I would repeat here that the intention was not to deprive the benefits of the Ordinance to all persons who are serving the Government. In 1975 PLC 361, while interpreting this phrase, it was observed "though the Corporation may be performing function as an agent of or on behalf of the Provincial Government and its employees as public servants are not persons employed in "Administration of the State" and hence are not excluded from the application of or the benefits provided under the Ordinance.
7. Similar establishments like K. D. A., K. T. I., L. D. A. Municipal Corporations etc. ; are also controlled by the Government but the B Labour Laws have been made fully applicable to it. For brevity sake, I will refer only to 1976 PLC 383. In view of this, it is quite clear that the H. D. A. Would also be fully covered by the provisions of I. R.
0., 1969.
8. As to the application of S. O. Ordinance, suffice it to say that nothing has been brought to the notice of this Court to show that the H. D. A. Has its statutory rules of service. In the absence of any statutory rules like K. D. A. Etc. ; the provisions of S.
0. Ordinance would also be applicable to it.
9. Reverting to the merits of these cases, it is stated that according to the applicants they had not yet attained the age of 60 years and they had never notified their age to the respondent. The plea of the respondent however is that service books as maintained in the department show that they have completed the age of 60 years and so they cannot question their age at this stage. In both the cases the service books were not confronted to the applicants to ascertain if the thumb marks thereon belong to them. Both the service books have now been produced in original by Mr. Jafri during the course of arguments. These books were said to have been prepared some time in 1972.
The columns pertaining to the date of enrolment and date of birth appeared to have been recorded in different ink and by a different persons while the rest of the entries by a different person. In the case of Allah Bux the concerned Assistant Engineer has not even signed it though his seal is affixed. In the case of Bashir it is shown that he had the education of IVth class but his signatures have not been obtained. This Bashir has also produced his Identity Card purported to have been issued by the Public Health Engineering Department on 4th April, 1977, as Exh. A/3.
According to this he has been shown as 40 years old. The authenticity of this document has not at all been questioned on behalf of the respondent in any manner. Admittedly both the applicants are said to have been appointed in 1961 on one date but service books were prepared only in 12th December, 1972 without obtaining any information or proof about the age from the applicant. They were also not medically examined to ascertain their approximate age. These applicants were also never notified about the entries into their service books or even preparation of such service books.
As stated above, Bashir has been shown as of 40 years old in the identity card issued by department itself in the year 1977 and its entry as to the age is quite conflicting with the entry made in the service book. The service book in respect of Allah Bux was not authenticated by any person till date. The entries also appeared to have been made with intervals. In these circumstances it cannot be argued on behalf of the respondent that the entries made in the service books would now be sacred and cannot be questioned. It is a universal principle that the employee is to be asked to notify his date of birth or approximate age and if the same is doubted, the same is to be verified in a number of ways including medical examination. However, the age cannot be suo moto determined by the management itself. In this view of the matter, the conclusion of the respondent that the applicants had attained the age of 60 years on one and the same date would hardly be acceptable. It is really strange that both the persons had joined service on one date and would be considered to have attained the age of 60 years on one and the same date.
10. However, it will now be open to the management either to accept the ages of the applicants as they claim or to get their ages ascertained through a competent Medical Board, within one month hereof. In both the ways, the applicants shall be deemed to be in the employment with all benefits only till they are found to have attained the age of 60 years. If they are found to have already attained age of 60 years, they will be deemed to have retired on such date.