Mr. Ahmed Khan, Operator employed in Machine Tool Factory has challenged the order of retirement, dated 18-7-1985 for reaching the age of 60 years, as illegal and also prayed for re- instatement with all the benefits accrued to him.
2. Respondent has raised the legal contention, first, that the notice of grievance given by Ahmed Khan was the starting point of limitation from the date of intimation of 27th March, 1985, therefore, any subsequent notice of grievance is not maintainable.
3. On the facts, the respondent has supported the, order of retirement in view of medical observation regarding his age of 46 years on 19-7-1971, the date of employment and, therefore, in the absence of the documentary proof of age medical observation of the Company's doctor has been considered as final.
REASONS:
1. First this controversy, must be resolved whether the medical certificate is the conclusive proof of the age. Medical Certificate is simply the opinion. The best evidence of the age be either school certificate or birth date entry at the time when he was born in the home town.
2. The second question is if the birth date is not available of school certificate or parents, with accuracy, what further evidence can determine the age of the applicant. Generally the burden of proof of age is on the employee who seeks continuation of service and then the burden of proof shifts on the respondent, what record was maintained by the employer regarding his correct age, earlier in time to determine the accuracy of age.
3. Following documents have come on the record. There is permanent identity card of the company. The age is shown 36 years on 19-7-1971. There is medical card age is shown 2-9-1934.
Physical Fitness Certificate shows his age 36 years according to his statement. But Company's doctor showed his age by appearance as 46 instead of 36 on 19-7-1971, at the date of the joining of employment.
4. Ahmed Khan has shown the date of birth in his National Identity Card in the year 1975 of 10th October as the date of birth 12-11-1936. Civil Surgeon Karachi has shown his age on 30-5-1986 as 55.
5. What is the evidence of Mr. Aslam Assistant, Manager of Labour Department of the Company.
6. He has referred his personal record. He has said that his appointment form shows the date of birth 7-9-1934 Exh.B/1. In the joining report he has shown the age 36 years. In Nikah Nama he has shown the age of 38 years on 12-11-1973. Family card according to him shows the date of birth 7-9- 1934. His permanent card shows the age of 36 years.
7. Then the respondent is confronted, whether any letter was sent to Ahmed Khan regarding doctor's assessm ent of 46 years officially and what steps were taken to inform the concerned employee. They have admitted that the date of retirement actually enforced with effect from 18th July, 1985 as 60 years the age of superannuation.
8. Mr. Rana Aslam, another witness of the respondent Company has given the following evidence of which the relevant extracts are given: The witness stated: "At page 17 of the file, there is appointment letter. His age is 19-7-1925. He is shown 46 years of age. I also see the employment form. He has shown the age as 7-9-1934 the date of birth. We had made correction on the basis of medical certificate."
9. The witness further stated that Mr. Ahmed Khan has shown his age as 36 years on 17-9-1971. In medical card he has shown the age as the date of birth 2-9-1934. He has referred his National Identity Card where he has shown his age in the year 1975 as 12-11-1936 the date of birth.
10. Mr. Aslam has denied that he made tampering in the record by making correction or he got the signature of any responsible officer for correction after the medical fitness of the Company's doctor.
11. The applicant has further examined the evidence of Mr. Malik, Medical Officer of the Civil Hospital Karachi in respect of the certificate issued by doctor Khalid who has died. He has also stated that he has supported this opinion by referring to the certificate issued by Civil Surgeon and on the basis of clinical observation of X-Ray gives the opinion that he was 55 years of age with the margin of 2 years from either side and shows the age 58 years by appearance on the date of his evidence viz. 12-12-1986.
CONCLUSION: With this background of the evidence and the non-appearance of the medical officers who examined Ahmed Khan physically, the Court has been handicapped, to know the exact accuracy of the age of Ahmed Khan in the year 1985 or even earlier by the company's doctor at the date of the employment, what was his age in the absence of school and parent certificate or the evidence of the first employer. If the certificate of the Civil Surgeon is accepted which is supported by X-Ray, will be more reliable than company's doctor who simply made assessment by appearance with the heavy margin of 10 years and less qualified than Civil Surgeon. The opinion of the Medical Experts is still the opinion and not the exact accuracy with fluctuating margin by one doctor of 10 years and other doctor of 2 years what are other inaccuracies, in the statement of Ahmed Khan himself who has been changing his statements one after other. His age in the National Identity Card shows in the year 1975 that his date of birth is 12-11-1936. This shows his state of mind that his own statement of 36 years of age or of the year 1934 at the time of employment was not accurate despite the fact that company did not verify his first employment certificate or school certificate.
But that is not the end of the matter. The company can call upon the employee to produce the age certificate of first employer if the school or parent certificate is not available to determine the real age to satisfy the judicial requirements. In the meantime if the employee continue to serve on those changing statements and they have not examined the medical officer of the company in the Labour Court his age at present shall be 58 years on the basis of the opinion of a Surgeon who has supported the certificate of Dr. Khalid and he is the witness of the applicant himself. His evidence has not been disputed by the respondents. If the Court has taken this view that the opinion of Medical Expert is weak type of evidence, the Court has left still this issue open for the employer to call on him to produce the certificate of the first employer or school or parent certificate. He is re- instated and will furnish surety before the employer in respect of the financial benefits if received and then any action the employer finds necessary what is just and proper.
The Court has also further observed that if the argument be that the age should have been decided finally in this petition, what the Court has found just and proper in the circumstances the directions to follow to achieve the finality of the question of age for, in the opinion of the Court that the question of real age is the most important factor from the point of view of socio and economic problems. The General Notice is rightly given from starting point of retirement (18-7-1985).
Application is allowed to that extent in the interest of justice. Reference made to 1984 PLC 431, 1983 PLC 537, 1984 PLC 1180 and reference made to letter of respondent, dated 16-4-1977 and 16-3-1977 in the arguments (Not produced at the stage of evidence).
M. Y. H./916/Lb.