This is an application for the redress of grievance under section 25-A, Industrial Relations Ordinance, 1969.
2. Mr. Ekhtiar Ahmad was appointed on 7-7-1975 as a permanent workman in the respondent's establishment, lastly designated as store supervisor but mainly doing clerical work. Applicant is an ex-service man. He passed Matriculation Examination in 1941 at the age of 14 years from United Province Allahabad India.
3. When Pakistan came into existence, he migrated to Pakistan and lost his original Matriculation certificate from the any unit to which he was attached. When the age of the applicant was not certain, the applicant was directed by the management to produce original matriculation certificate before retirement. Applicant filed affidavit disclosing that he passed Matriculation Examination in 1941 and was of 14 years of age.
4. Applicant has the grievance that he had been wrongly retired from 1-9-1985 on reaching the age of 60 years on 29-8-1985 when the applicant still has number of years to serve in the management. Applicant was examined by Lt.-Colonel Company Malir Cantt., Karachi who also confirmed that he was 53 years of age on 2nd of February, 1985.
5. Respondent has filed written statement and contended that applicant is not a workman within the meaning of the provisions of Industrial Relations Ordinance, 1969 but he is a supervisor.
6. On the merits, it is contended that applicant was engaged on 7-7-1975 as a Clerk and subsequently promoted to become Assistant on 26-2-1977 and finally on 1-7-1979 as a Supervisor.
He was retired on 1-9-1985 at the age of 60 years. Respondent has also further disclosed that as a Security Supervisor he was always found sleeping on duty. But at the same time his performance has become satisfactory and he was granted increment. Respondent has denied that he passed his Matriculation examination at the age of 14 years or his Matriculation examination certificate was lost. According to the respondent when he was appointed in the respondent-factory be completed Form 'A' on 20-11-1975 where he showed his date of birth as 30-8-1925, according to which he reached the age of superannuation on 30-8-1985. He also submitted photocopy of service particulars of any issued by the record office Malir on 2-5-1975. According to these particulars he was enrolled for any service on 8-8-1945 and his age at the time of enrolment in 1945 was 20 years. Even if the age is calculated the date of his birth comes to 1925 and, therefore, he completed his 60 years in August, 1985. The respondent has also further contended that applicant on his own accord submitted the medical certificate issued by staff Surgeon C.M.A. Malir where his age has been shown as 53 years. When he was asked to produce the original certificate he filed affidavit showing the age at the time of passing the Matriculation examination as 14 years.
7. Respondent has also referred following documents namely; the employment form, service particulars, any certificate, K. D. A. Certificate, where he is shown in both the any certificate and K.D.A. Certificate that he completed 25 years of service.
REASONS
1. There are 2 questions to be raised in this case whether there is provision of his retirement in the I.R.O. And what is the provision of retirement which can be challenged, secondly if the retirement is termed as termination to be challenged under section 25-A of the I.R.O., whether the age of retirement is correct that Ekhtiar Ahmad has not reached the age of superannuation and has still to serve.
2. In the affidavit in evidence Mr. Ekhtiar Ahmad has said that he passed his Matriculation examination in 1941 at the age of 14 years from Allahabad U.P. India.
3. In 1945 he was enrolled in the British Army. At the same time he stated that when he joined the British Army he was less than 20 years of age.
4. His medical certificate which he had obtained was lost when the refugees had migrated to Pakistan. He however, taking specific defence that his entry regarding the age at the time of enrolment in the British Army in Annexure 'B' is not correct and this fact was brought to the notice of the Officer Incharge who after verification issued certificate that his age at the time of enrolment was wrongly recorded as 20 years in Annexure 'C'. He has further made reference to the affidavit which he has filed to show that he was 14 years of age at the time of passing Matriculation examination and further relied on the medical certificate that he is physically fit to work in the department, his age approximately may be 53 years of age.
5. Ekhtiar Ahmed has also been cross-examined and denied that the letter Annexure 'A/6' is a forged letter. This letter of March, 1985 issued by the Officer Incharge Record has issued certificate to this effect that it was mistake that his date of birth has been shown as 20 years at the time of the enrolment in the any.
6. The Court has also referred the affidavit which he has produced, dated 1-8-1985 before Oath Commissioner that his age was 14 years when he passed the Matriculation examination.
7. Apart from his evidence, there is also evidence of the respondent witness Mr. Abdul Latif Chandio, who has made statement clearly that the retirement age in the Company is 60 years. They also follow the same rules of the Government. He has suspected medical certificate of 2nd Fabruary, 1985 as not reliable regarding the age. Mr. Chandio has also further referred the appointment from where he stated that the date of birth is shown 30-8-1925. In this connection they made enquiries regarding his age from ex-employer. The reply came that his record is not available. He filed affidavit attested before the Magistrate where he has shown the age at the time of Matriculation examination 1941, 9 years of age. Mr. Chandio has also stated that if his date of birth is taken to be starting point from 80-8-1925 he has crossed the age of 60 years. If his military certificate is examined, he has completed 25 years of service and reached the age of 60.
8. The Court has examined the evidence from the documents and more particularly the earlier certificate presented at the time of the employment where his age is shown as 30-8-1925.
9. Indeed there is nothing in the I.R.O. About the provisions of retirement to be taken cognizance under section 25-A, I.R.O. If the applicant's services are terminated, discharged or dismissed, he can challenge under section 25-A, I. R.O. Section 25-A, however reads that worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in 'force to the notice of his employer in writing.
10. Here there is no settlement that age was specified of an employee. Nothing has been shown under what law the rules were framed by the Company or any award has shown of the Court that particular age has been specified as the age of an employee.
11. But the Court has also seen West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance and referred prominently section 12 and section 19. Section 12 speaks of termination and subsection (3) speaks that the services of the workman shall not be terminated nor he be removed, retrenched, discharged or dismissed except by an order in writing. Similarly the subsection provides, that if a workman is aggrieved by the termination of his service or removed, retrenched, discharged or dismissed he may take action in accordance with the provisions of section 25-A I.R.O. Section 19 further also provides that every permanent workman shall be entitled to service certificate at the time of dismissal, discharge or retirement from service. It appears the word retirement in section 19 of the said Ordinance, But the same word retirement has not been found to subsection (3) of section 12. Likewise there is no mention of word retirement in I. R.O. If section 19 is to be given effect it shows that the workman is to be given service certificate. But whether he can challenge as in the case of termination, removal, retrenchment, discharge or dismissal as contemplated by subsection (3),
12. The opinion of the Court, therefore, in the I.R.O. Also being) substantive law and the procedural law and further the Ordinance of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance if speaks of termination removal retrenchment, discharge or dismissal the workman can only challenge his removal at the most as termination of service from retirement.
13. Respondent has also referred decision in case of Khuda Bux v. District Manager K.T.C. Of the Hon'ble Labour Appellate Tribunal giving reference of decision of 1979 at page 275. In this decision also the observation of his Lordship are that neither of these 2 enactments contained any provision fixing the age of retirement of a workman and securing right of superannuation in some comprehensive sense of the term under section 25-A, I.R.O. His Lordship also concluded that the Court has no jurisdiction to go into the case of retirement.
14. If the retirement is challenged as illegal and taken in the sense termination, the Court has examined the evidence and found that in he earlier stage of employment Syed Ekhtiar Ahmed has shown the ate of birth 30-8-1925. It shows that he has reached the age of 60 years, even more than 58 years if followed the retirement rules of the company produced on page 20/R/1.
15. So far as the date of birth is concerned the Court is of the view that the school certificate or the parent certificate is the most reliable evidence of particular person who has entered at the age of infancy in the educational institution. The parent certificate is still the best evidence against the school certificate because it is the parent who apply for date of birth in the institution. Therefore, in the view of the Court any certificate subsequent thereto has no legal force. If the applicant has made attempt to get affidavit signed before Oath, Commissioner on 1-8-1985 moved for employment, dated 20-11-1975 this follows that only attempt has been made to purpetuate the continuance of employment and nothing beyond Similarly the medical certificate even if the Court takes this view as a weak type of evidence based on approximate assessment for which also under the medical jurisprudence the full X-Ray is to be taken of the bones, teeth and other constitutional structure. Annexure 'A/6' has been denied by the respondent saying that it is a forged document.
This Annexure 'A/6' shows that age of 20 years was wrongly recorded.
16. Whatever may be case, the Court attaches sanctity only to the certificate of institution, and his earlier state of mind, what he said at the time of employment where he cannot be mistaken about his date ofbirth or erroneous record of his entry in service.
17. In the result, the evidence presented of medical certificate and, if the affidavit filed before Oath Commissioner is the weakest, inferior evidence in the absence of the school certificate. His own statement regarding date of birth on 20-11-1975 is the only evidence of the proof of his age, if no Matriculation certificate is produced before the company and before the Court of law.
18. In the result, the application has no merit and is dismissed. However, if the applicant can get the certificate from the institution of Allahabad after getting duly attested by the institution on proper identification, the company can again consider so for the present date of birth's entry in the service particulars of 'A' form as the only evidence to be reliable a: against most weak and inferior evidence simply to continue in the job, for which there is no legal force. The Court has also further examined the appearance of applicant and found that he is certainly an aged man.
19. Reference of the notification regarding relaxation of the age was the directive in respect of the civil post and not to the private concerns. The question of age- is to be established first before the relaxation is granted by the employer. Notification is, dated 11th July, 1964 and, F dated 11th May, 1960. No such notification even was brought to the notice of the private concern. However, still it is the private concern to consider, but on the merits the application is dismissed with the above observations in the judgment. Applicant has produced notification at the time of arguments.