DECISION This is an appeal filed by the appellant Establishment against a common impugned order, dated 23-1-1984, passed by the Labour Court No. VII, Sukkur, who had allowed two separate grievance petitions filed by the respondent, namely, Muhammad Mohsin, under section 25-A, I. R.O. , 1969.
2. Brief facts of the case are that the respondent was appointed as a workman in the appellant Establishment on 17-3-1950 but at the time of his recruitment, his age was not mentioned in the service record, though he had verbally informed the same to the concerned Officer. In the year 1980, when the respondent came to know that his age was wrongly assessed by the Medical Officer and was incorrectly recorded in his Service record, therefore, he approached the Head Master of Primary School, Shahdado Rohri, where he had studied for two years and had obtained Primary School Leaving Certificate. On receipt of this Certificate, the respondent approached the appellant Establishment's General Manager to make correct entries of the date of his birth in his Service record, but, instead of repeated promises, the General Manager did not correct the said entries. On 30-6-1982, the respondent submitted an application to the new General Manager for the needful, who, vide his letter, dated 10-7-1982, refused to do so. Thereafter the respondent served a grievance notice upon the appellant Establishment and then, submitted grievance petition bearing No.80 of 1982, before the Labour Court . However, when the dispute of correct determination of the age of the respondent was sub judice before the learned Labour Court , the appellant Establishment had retired the respondent from his service with effect from 30-9- 1983, with effect from 30-9-1983, vide retirement order, dated 11-8-1983 on the ground of attaining the age of 60 years. Being aggrieved of this decision of the appellant Establishment, the respondent submitted a grievance notice upon the appellant Establishment and subsequently, a fresh grievance Petition No.65 of 1983 before the learned Labour Court . Thus, as the facts and circumstances in both these grievance petitions were common and similar, therefore, the learned Labour Court had passed a single impugned order, dated 23-1-1984, allowing both the grievance petitions of the respondent and directing his re-instatement in service, but, without back benefits.
3. The appellant Establishment had resisted both these grievance petitions of the respondent on the ground that at the time of his recruitment, he had not produced any documentary proof in support of his correct age, therefore, he was medically examined by the Medical Officer of the Establishment in the year 1955 who had assessed his correct date of birth which was entered into his Service record and such intimation was very well sent to the respondent and he never challenged the authenticity of the entries. That, as the respondent, according to these correct entries in his Service record, had attained the age of superannuation and was lawfully retired from service, therefore, he could not claim himself as a workman and maintain his grievance petition.
Further, it was a plea of the appellant Establishment that both the grievance petitions of the respondent were liable to be dismissed also being time-barred.
4. Both the parties filed their affidavits-in-evidence and were cross-examined. The learned Labour Court , thereafter, allowed both the grievance petitions, hence, this appeal.
5. I have heard Mr. Shabbir Ahmad Awan, the learned Advocate for the appellant Establishment and Mr. Hassan Hameedi, the learned counsel on behalf of the respondent and have also carefully perused the record and proceedings of the case. It was argued by Mr. Shabbir Ahmad Awan that the age of the respondent was assessed in the year 1955 by the Medical Officer of the establishment and this age was entered into his Service record and during a long period of service of 25 years, the respondent never approached the appellant Establishment to make corrections in the record and that there is nothing on record to show as to how and why it was felt necessary to the respondent to approach the Head Master of the Primary School, Shahdado Rohri and to obtain a School Leaving Certificate and to keep it with him till 1982, and further that for arguments sake, if it would be presumed that the School Leaving Certificate was correct and genuine, then, why it was not submitted to the appellant Establishment for making necessary corrects and in the case of refusal on the part of the establishment to do the needful why it was not agitated under the Law, therefore, the grievance petitions were barred/hit by the principles of Waiver and Laches. I see no force in these contentions of Mr. Shabbir Ahmad Awan. It is an admitted position on record that the respondent was recruited in 1950 and at that time, no documentary proof in support of the correct date of birth was asked by the appellant Establishment to be produced by the respondent workman. It is again an admitted position' on record that if at all the respondent was medically examined by the Medical Officer of the appellant Establishment in the year 1955, neither such an intimation was lawfully and reasonably was sent to the respondent, nor, the Medical Officer was produced to verify the contents of the medical opinion or to explain, in detail, the contents of this opinion assessing the age of the respondent, as far back as in 1955. Further, it is on record that the respondent had obtained the School Leaving Certificate showing his correct date of birth as 10-3- 1930 as per entries made in the relevant register of the Primary School, Shahdado Rohri, made in the year 1936. Admittedly, the respondent was approaching the General Manager of the appellant Establishment, right from 1980 till 1982 for the necessary corrections and on 10-7-1982, when the appellant Establishment had finally refused to make such corrections, the respondent after complying with the requirements of the Law, had approached the Labour Court , well within time. From the evidence on record of the Headmaster, Primary School, Shahdado Rohri it is clear that the correct date of birth of the respondent was 10-3-1930 and this fact was recorded in the relevant register of the said Primary School, as long before as in the year 1936. The appellant Establishment had miserably failed either to rebut this document, or to produce any other document in support of their pleadings. 1, therefore, hold that the correct date of birth of the respondent was 10-3-1930 and the School Leaving Certificate as genuine, lawful and admissible in Law. I further hold that in view of this document, the medical opinion of the Medical Officer of the appellant Establishment, particularly without putting him in witness-box for cross-examination by the respondent, is nothing but a presumptory piece of paper and not admissible, and that' the Management was duty bound to accept this genuine document. I would hold that in view of the facts and circumstances, brought on record, the respondent was tirelessly approaching the appellant Management for making corrections in his Service record and on being aggrieved on the refusal by the management in the year 1982, his grievance Petition No. 80 of 1982 was well within time and thus, maintainable, therefore, the learned Labour Court has rightly held the same, as such. In view of the findings on the main issue of correct date of birth of the respondent and also the maintainability of the; grievance petition the subsequent retirement order of the respondent, passed by the appellant Establishment, even, when the basis of such an order was sub judice before a Court of Law, was nothing, but, mala fide, illegal and not sustainable, hence, set aside.
6. For the reasons, stated by me above, I see no reasons to interfere with the impugned order and would maintain the same. This appeal, therefore, stands dismissed. The respondent is directed to be re-instated in service forthwith. However, I would not allow the respondent his back benefits.
M.Y.H. /901/Lb.