' Through this Constitutional petition Ghulam Hussain petitioner wants this Court to declare the order dated 15-11-1988 passed by Punjab Labour Appellate Tribunal, Lahore, respondent No, 3, to be without lawful authority and of no legal effect.
2. The facts leading to this petition briefly are that the petitioner was working as a Driver under District Manager, P.R.T.C., Dera Ghazi Khan, respondent No, 1, when on 20-12-1986, he received retirement notice issued by the employer/respondent No, 1 informing that he will attain the age of superannuation. i,e, 60, years on 3-4-1987 and shall stand retired from service w,e,f, that date.
Feeling aggrieved there by the petitioner approached respondent No,1, whereupon the latter vide his letter dated 7-1-1987 referred him (the petitioner) to the Medical Superintendent, DHQ, Hospital, Dera Ghazi Khan for medical opinion with regard to his age whereupon the Medical Superintendent vide his report dated 8-9-1987 opined that the petitioner was about the age of 58 years. On 11-3- 1987, the petitioner made application before respondent No,1 praying that his date of birth may be corrected and he may be allowed to continue for two years more but all in vain. So he filed petition under section 25-A of the Industrial Relations Ordinance, in Labour Court 9, Multan praying that he be allowed to work for two years more. The application was resisted. The petitioner appeared as P.W.2. He produced Dr. Abdul Shakoor, Medical Superintendent P.W. 1 to prove medical certificate Ex.
P1. He tendered documents Exs. P1. To P3 in evidence. In rebuttal no witness was produced. However, documents Ex. R1, Copy of the Form (particulars of employees and terms of service) of the petitioner as a Cleaner prepared in the year 1947, Ex. R2. Copy of the fitness certificate Exs. R2 to R5 and Ex. R6 copy of the application form for employment as Driver filed by the petitioner on 26-6- 1951, were tendered in evidence. The learned Punjab Labour Court allowed the petition directing respondent-No, 1 to reinstate the petitioner in service with back benefits and to retire on 8-1-1989.
Feeling aggrieved by this decision, respondent No, 1 filed appeal before Punjab Lahour Appellate Tribunal, Lahore, which was accepted. The order of the Labour Court was set aside and the grievance petition was dismissed. Resultantly, the decision of the retirement of the petitioner w,e,f, 3-4-1987 made by respondent No, 1 stood restored. Hence this petition.
3. The petitioner has not engaged counsel. He is present and has been heard. Learned counsel for the respondents has opposed this petition. He relied on documents Exs. R1 to R6 to contend that on his own showing the petitioner was born on 4-4-1927, as such, was estopped from challenging the date of his retirement intimated to him in his retirement notice issued by the respondent. Learned counsel was of the view that the impugned order was quite legal.
4. I have considered the matter carefully. I feel persuaded to agree with the petitioner. Form Ex. R1 is in Engilsh whereas the petitioner does not know English. It is not known as to who had filled Form Ex Rl. Except the presumption drawn by the Punjab Labour Appellate Tribunal, there is nothing in evidence to show that the age mentioned in EL R1 was told by the petitioner himself. Learned Appellate Tribunal has not qouted any provision of law under which he has drawn the aforesaid presumption. Furthermore, EL R1 relates to the appiontment of the petitioner to the post of Cleaner.
As for his appointment as a Driver, the petitioner filed application, Form Ex. R6 on 26-6-1951, which does not contain the exact date of his birth. In Column No,7 of the application EL R6, his age is entered as 30 years meaning thereby, he was born on 27-6-1921, which is obviously incorrect. It appears that this entry was not believed by the respondents, otherwise the petitioner might have been retired in the year 1981. Fitness Certificates Exs. R2 to R5 do not take the case of the respondents any further. The exact date of birth of the petitioner is not mentioned in these documents. The documents contain inconsistent age of the petitioner, e.g. In fitness certificate Ex.
R2 relating to the year 1986, the age of the petitioner is shown about 58 years. In fitness certificate Ex. R3 relating to the year 1984, the petitioner is shown to be the age of about 57 years. In fitness certificate EL R4 relating to the year 1983, his age is again stated as 57 years. So the entries with regard to the age of the petitioner remained inconsistent and untrustworthy. Although the error about the age of the petitioner was very much apparent on the face of the documents, kept by the respondents, yet no attempt was made to remove the doubts or correct the entry relating to the age of the petitioner in the application for his appointment as a Driver. It seems to me that it was because of his dissatisfactory record of the petitioner maintained by the department that respondent No,1 referred him to the Medical Superintendent for examination of his age. Strangely enough having got the petitioner medically examined by a responsible Medical Officer, respondent No,1 declined to consider the medical opinion. The learned Appellate Tribunal has not given sound and cogent reasons for not relying on the medical opinion given in medical certificates EL P1 and has considered the entry in Ex. R1 as a conclusive proof of the date of birth of the petitioner. It may be noted here that the petitioner was not confronted with the document Ex. R 1 when he appeared as a witness. He was not given any opportunity to explain the entry relating to his age made in document Ex. Rl. He was not questioned with regard to the identity of the person on whose information Form Ex. R1 was filled in English. The person who had prepared Form Ex. R1 has also not been produced by the respondent. After having opted for the medical examination of the petitioner with regard to his age there was no justification for the respondent to exclude the same from consideration. In the peculiar circumstances of the case that the record of the age of the petitioner/Driver maintained by the department was contradictory, the Labour Court was fully justified in giving preference to the medical certificate over the inconsistent record maintained by the respondents. The Labour Appellate Tribunal has not attended to and adequately met the reasons given by the Labour Court in support of its decision and has simply based its judgment on the entries in Form Ex. R1 considering the document to be sacrosanct/sacred and unrebuttable. The impugned judgment not only seems to be unjust but also appears to be arbitrary. Be that as it may the fact remains that the record of the date of birth of the petitioner kept by the department was neither consistent nor satisfactory. As far the age of the petitioner there were three documents on record. Medical Certificate Ex. P1 shows that the petitioner was about the age of 58 years at the time of his examination by the Medical Superintendent on 8-1-1987. In Form Ex. R1 prepared at the time of the appointment of the petitioner as a Cleaner in the year 1947, his date of birth was mentioned as 4-4-1927. For his appointment as a Driver the petitioner filed fresh Form on 26-6-1951 in which low age is shown as 30 years. I feel that it would be in consonance with the rule of justice and equity that the benefit of doubt in the matter of age should go to the employee/public servant and not to the employer/Government. So preference has to be given to the medical certificate over documents Exs. R 1 to R6.
' Pursuant to the above discussion, the petition is accepted. The order dated 15-11-1988 passed by the Punjab Labour Appellate, Tribunal, Lahore respondent No,3 is declared to be without lawful authority and of no legal effect. Resultantly, the order dated 12-6-1988 of the Presiding Office, Punjab Labour Court No, 9, Multan, respondent No,2 shall stand restored. The parties will bear their own costs.