1. The applicant abovenamed has prayed for direction to the respondent to rectify the age as per certificate issued to him by the Medical Superintendent Services Hospital, Karachi and the National Identity Card and also not to take any action against him on the basis of any service record with the respondents. As would be apparent, the phrase, "any action" in the above-mentioned prayer clause would mean the action of retirement.
2. Briefly it is the case of the petitioner that he was permanent workman working as Bench Fitter with respondent No,2 under the control of respondent No,1. That he was member of K.T.C. Employees Union which was also C.B.A. and the said C.B.A. Union had entered into an agreement with the respondents wherein age of retirement has been fixed at 58 years which can be extended upto 60 years. It is said that on 6-8-1988 the Secretary of the respondent's organisation issued an order of retirement of employees including that of applicant who would be retired on attaining age of superannuation on which applicant served grievance notice informing that he had attained only age of 53 years but no reply or action was given/taken, as such, applicant filed grievance petition No, 169 of 1988 in this Court and during that he came to know for the first time that his date of birth in the Service record has been shown as 12-12-1930 and the respondents had also undertaken during that petition that the applicant would not be retired before superannuation. However, on 17- 10-1989 applicant served grievance notice requesting for rectification of date of birth on the basis of a certificate issued by the Civil Surgeon and the National Identity Card but the same was not replied, hence, this, grievance petition. It may be mentioned that the applicant was actually retired from service on 12-12-1988 during pendency of this grievance petition whereafter he had moved for Interim stay on 10-1-1989 but the same was dismissed, mainly on the ground that there was no prayer for mandatory ad interim injunction in the main grievance petition. From the material available on this record it appears that the petitioner had thereafter filed the appeal before the Tribunal against the said rejection of interim stay wherein by consent of the parties it was ordered that the name of the applicant would not be struck off from 9-2-1989 but he would not be paid any salary which would be paid to him subject to the decision of instant grievance petition but the applicant would be entitled to the medical treatment in accordance with the rules.
3. Whereas respondents opposed this grievance petition through their reply statement mainly on the ground that the date of birth i,e, 12-2-1930 was given by the applicant himself in his application for the appointment duly signed by him and on the basis of that he has been retired. In his support the applicant filed his affidavit in evidence and also examined Dr. Sanaullah, Civil Surgeon, Civil Hospital, Karachi to prove age certificate Annexure-C to the application. Whereas the respondents filed affidavit-in-evidence of one Abdul Hadi Essani who had signed the reply statement. All the witnesses were duly cross-examined.
4. In this matter, the learned Advocates for the parties had submitted their final arguments verbally and also filed the same in writing.
5. From the above-mentioned arguments and the order dated 17-10-1988 of this Court in the above grievance Petition No,169 of 1988 it appears that the cause of action of the said grievance petition was in fact order of the Secretary of the respondents which is Annexure-B to the petition wherein some employees and the applicant are mentioned, and who would be retired on the date they would attain age of superannuation. During the said earlier grievance petition, it occurred to the petitioner after the reply from the respondents that the said order by itself was not retirement order as such applicant's side applied for withdrawal of the said grievance petition, and therefore the same was dismissed as withdrawn. It may be mentioned that the copy of the said grievance petition has not been brought into evidence in the instant grievance petition but in any case, as mentioned above, there was no prayer for rectification of date of birth in the said grievance petition.
6. Now the points for determination would be:
(1) Whether petitioner had served before filing instant grievance petition?
(2) Whether the age of retirement is 58 mu and weather the application for appointment which is Annexure A/1 row upon the respondents is not signed by the applicant?
7. There is no reply in the written statement to para. 10 of the instant grievance petition that applicant had sent the grievance notice to the respondents. Then there is no plea taken by RW Abdul Hadi Essani in his affidavit-in-evidence regarding non-receipt of the grievance notice as such it is held that applicant had served grievance notice Annexure-E to the instant grievance petition on the respondents.
8. Then the agreement which is Annexure-A to the instant grievance petition which prescribes the age of retirement to be 58 years has also not been questioned by the respondent's side either through reply statement or through their affidavit-in-evidence as such it is held that the age of retirement for the employees of the respondents is 58 years extendable up to 60 years in accordance with the said agreement Annexure-A.
9. Now comes the question whether the date of birth relied upon by the respondents as basis for retiring the applicant mentioned in Exh. A/1 is really signed by the applicant or not? In this connection, such question was asked from the applicant when he was cross-examined but he has denied the signature on said Annexure-A/1. There is nothing on this record as an admitted document to show that applicant has ever signed in English or that the same can be compared with the questioned signature on Exh. A/1. In fact RW Abdul Hadi Essani in his cross-examination has admitted that, "the applicant had never corresponded with us in English; however, applicant has signed in English on application form which is Annexure A/1, (which as mentioned above has already been denied by the applicant)". He has also admitted that the said application was not submitted by the applicant to him personally. There is another document shown as offer letter Exh.
10. R/1 which is also said to bear the signature of the applicant but there is also no conclusive evidence that the said signature was put by the applicant in presence of RW Abdul Hadi Essani or any other witness. At this stage reference be made to one Medical Certificate Annexure-C to the application issued by Dr. Sanaullah a Civil Surgeon Services Hospital Karachi which stands proved as the said Doctor was examined in this Court who has deposed that the said Certificate was issued by him and that on the basis of the report of the Radiologist and from the personal appearance of the applicant he was of the view that, the age of applicant was around 53 on 3-9- 1988. This being so, it is held that the respondents have acted in post-haste manner by issuing the impugned order of retirement of the applicant for the reason that, the applicant had stated in the earlier grievance petition that his year of birth was 1938. He had also thereafter sent grievance notice before filing the instpnt grievance petition and as such respondents were duty bound to see that proper record of their employees including applicant is maintained and therefore they should have also got him referred to any other doctor/Medical Board of their choice but they failed to do so. On this point, reliance is placed on a decision of our Hon'ble S.L.A.T. in Appeal No, KA.R-262' of 1986, decided on 18-9-1988 wherein it has been held that, "there is nothing on record to show whether in case of a dispute over the age of the respondent, the appellant Corporation had either verified the authenticity of the documents as had been relied by the respondent; or he was asked to appear before a Medical Board to ascertain his correct age. It was the duty of the Corporation to take and maintain correct, uptodate and authentic Service record of its all employees and it would not be proper for it to take decisions against an employee according to its own choice". Under the circumstances it is held that the impugned order of retirement of applicant being premature as held above is illegal and therefore the same is hereby set aside. Before parting, it may be mentioned that the learned. Advocate for the respondents had moved application dated 3-7-1989 for referring the questioned document to the Handwriting Expert and against which objections were also filed but the same was subsequently withdrawn vide application dated 8-10-1989.
11. In view of above finding, this grievance petition is hereby allowed and the respondents are directed to reinstate the applicant in service by issuing formal order under registered cover with postal acknowledgment due receipt on the last available address of the applicant within fifteen days from the date of this decision. However, applicant can himself approach the respondents and collect the said order during that period. The applicant is reinstated in service with full back benefits as there is no evidence that he was gainfully employed after his retirement in any other place.