DECISION This is an appeal against the impugned order, dated 29-10-1984, passed by the Sind Labour Court No. II, Karachi, who had dismissed the grievance petition of the appellant under section 25-A, I.R.O., 1969.
2. That the brief facts of the case are that the appellant joined the respondent-establishment as a permanent workman on 2-5-1955 and on 8-3-1983, he requested the respondent-establishment for correction of the year in his date of birth from 1923 to 1927 but the respondents, vide letter, dated 17-3-1983 refused to do so. Thereupon, the appellant submitted a grievance petition contending therein that due to his long trade union activities he had been discriminated as the management had refused to accept the certificate of Civil Surgeon regarding his age.
3. The respondent-establishment challenged the maintainability of the petition on the ground that no right guaranteed or secured to the appellant by or under any law, award or settlement and that the same was hopelessly time-barred as the question of correction of the date of birth of the appellant was decided by the establishment, vide their letter, dated 30-8-1986 wherein they had refused to change the date of birth from 1-7-1923 to 1927 and that vide letter, dated 7-8-1981, they had informed the appellant that he had attained the age of 58 years and he was directed to present himself before Mr. Niaz Hussain for medical examination for extension of service till his attaining the age of 60 years, and on his being declared fit, he was given an extension of service upto 60 years, which age he attained on 30-6-1983 and at that time the appellant did not object to the determination of his age.
4. Both the parties have filed affidavits-in-evidence before the learned Labour Court and were duly cross-examined. Consequently the Labour Court has passed the impugned order, hence, this appeal.
5. I have heard Mr. Khawaja Bilal, the learned Advocate for the appellant and Mr. Izzat Puri, the learned counsel for the respondent --establishment. It was contended by Mr. Khawaja Bilal, the learned Advocate for the appellant that the learned Labour Court did not appreciate the facts which were brought on file and that it was established fact that the appellant had guaranteed right under the valid Memorandum of Settlement which was confronted to the witness of the respondents' at the time of his cross-examination. That the learned Labour Court has erred in Law to ignore the facts of the order issued by the respondent-establishment for verification of the age through medical examination. Mr. Bilal has referred to me Annexure 'G' of the Labour Court's record, which is an age certificate, issued by the Civil Surgeon, Karachi, on 8-2-1983 and according to this certificate, the age of the appellant was about 50 to 55 years, therefore, the retirement of the appellant on having attained the age of 60 years simply raising on the wrong entries at the time of his original appointment, was wrong and unlawful. It was further contended that according to clause 6 of the settlement, dated 28-4-1972, all employees attaining the age of 60 years were to be retired from the service of the respondents. It was further contended that it was incorrect to say that the appellant did not object to the determination. Of age of the appellant to be of 60 years in 1983. There is an endorsement on Annexure 'B', in the handwriting of the appellant that he would not attain the age of 60 years on 30-6-1983. On the other hand, Mr. IzzatPuri has failed to refer to me anything on record that in view of the conflicting opinions of two different at two different occasions, the appellant was referred to any Medical Board to determine his latest correct age. The respondent also failed to examine their Doctor before the Labour Court so that the Doctor could have A been cross-examined by the appellant. This was the requirement of the principles of Natural Justice. I, therefore, hold that the retirement of the appellant holding him, having attained the age of 60 years, wash premature and illegal as well as contrary to the provisions of the Settlement arrived at between the C.B.A. And the respondent--establishment.
6. In view of the above discussion, I set aside the impugned order and allow this appeal. The appellant is directed to be re-instated in service. However, I would not allow the appellant back benefits.