DECISION ' This is an appeal against the order dated 6-3-1991 passed by the learned Presiding Officer Sindh Labour Court No, IV at Karachi whereby the grievance petition filed by the appellant was allowed and he was ordered to be reinstated in service with full back benefits.
2. The brief facts appear to be, that the respondent was admittedly employed as a workman by the respondent since 1952. According to the appellant, the date of birth given by the respondent at the time of entry into service was 12-3-1930, whereas according to the respondent his date of birth was 12-3-1938. Admittedly the retirement age of the employees of the respondent is 58 years extendable to 60 years. The respondent was retired by the appellant from 11-3-1990 vide letter of respondent dated 6-3-1990 on allegedly attaining age of 60 years. The respondent by application dated 11-3-1990 pointed that his year of birth was inadvertantly shown to be 1930 but in fact it was 1938, but he was retired on 11-3-1990 whereafter the respondent served grievance notice upon the appellant and then filed grievance petition.
3. I have heard Mr. Usmani for the appellant and Mr. Khalilur Rehman for the respondent and I have also gone through the record and proceedings of the case.
4. The only question that requires determination is whether the date of birth of the respondent was 12-3-1930 or it was 12-3-1938. It appears that the date and month of birth does not appear to be disputed, but only year is in dispute.
5. Mr. Rafat Usmani has mainly relied upon Exh. A/1 produced by the appellant through the respondent in his cross-examination. This document is a photostat copy, the original of which has been produced by Mr. Rafat Usmani for perusal by this Tribunal. It bears the thumb impression and signature of the respondent which is not disputed and in this document the date of birth of the respondent is shown to be 12-3-1930 and his age is shown to be 22 years. It is dated 21-8-1952.
6. Mr. Khalilur Rehman for the respondent has contended that this document does not bear signature of any officer of the appellant nor is it addressed to the appellant nor it is on the Letter Head of the appellant. This document however shows that it was to be returned duly completed to the Chief Secretary by 20-5-1952. It was further contended by Mr. Khalilur Rehman that this application is dated 21-8-1952, which is about 3 months after the date mentioned in this form as the last date to be submitted. It may be pointed that this document has been filled in after about 5 months of the entry of the respondent in service of the appellant. It is also not clear nor is it explained as to why the application was made to the Chief Secretary for employment with the appellant which was a private company. It is also not explained as to how this document came into possession of the appellant. Mr. Khalilur Rehman has mainly relied upon document R/16 produced by the appellant, which according to Mohammad Nawaz witness of appellant is a pro forma which was got filled in by the appellant for the purpose of getting medical aid. This pro forma R/16 is a document which is produced by the respondent. In this document the date of birth of the appellant is not shown but his identity card has been mentioned and his age is shown to be 42 years. This document is dated 26-1-1984. If the respondent was of 42 years of age on this date his year of birth would be 1942. The photostat copy of the Identity Card has been produced as R/21 which does not show the date of birth but his. Age is shown to be 36 years. It was issued on 16-4- 1974 which will also indicate his year of birth to be 1938. Mr. Rafat Usmani contended, that this Identity Card does not appear to have been prepared after due enquiry of the age of the respondent and the age therein is shown as was disclosed by the respondent. I am also inclined to agree that such Identity Card with regard to proof of the age does not have much evidentiary value unless it is corroborated by some other evidence.
7. The other evidence in support of his age produced by the respondent is Certificate of age, issued by Civil Surgeon, Karachi which is Exh. AW/2. It is dated 4-4-1990 which shows his age about 55 years which will bring the year of birth of respondent to 1935. Dr. Sanaullah Civil Surgeon Services Hospital Karachi, who issued the Certificate was examined in the Court by the respondent.
According to him it was based on radiological report. However he has admitted in he cross- examination that there could be variation of about 5 years. It was contended by Mr. Khalilur Rehman, that when there were two views possible it is settled law that view favourable to the worker has to be accepted by the Court or Tribunal.
8. The second piece of evidence to prove his age that has been produced by the respondent is a Certificate of the Chairman of Malir Union Council dated 25-3-1960 which shows the date of birth of the respondent to be 19-8-1937. It bears the Certificate of Chairman that above entry had been recorded in the birth register maintained by Union Council. It also bears the seal of the Union. It has been produced, as Annexure-A to the grievance application. Mr. Rafat Usmani contends that this document has not been properly proved as the record had not been summoned nor the witness was examined. He contends that the application for summoning the Chairman moved by the respondent was given up by him. The R&P of lower Court shows, that the application for summoning the Chairman was given up by the respondent on the ground that record has been burnt. However this document was 30 years old when it was produced by the respondent alongwith the grievance application, on 8-5-1990. Article 100 of Qanun-e-Shahadat which is equivalent to section 90 of the Repealed Evidence Act, 1872 provides:- "100. Presumption as to documents thirty years old.---Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested."
This document is thirty years old and has come from proper custody as it is certificate of age issued to the respondent from whose custody it was produced in the Court as such the presumption under section 100 of Qanun-e- Shahadat would be applicable to the document unless contrary is proved. There is no proof to the contrary.
9. There is no dispute that, it is settled law that the entry in the record of the employer at the time of entry in service of the workmen would have a C greater evidentiary value, but no such entry has been produced by the appellant except the application Exh. A/1 which, as already pointed, is neither addressed to the appellant nor it does bear any order or signature of any employee of the appellant. The document Annexure R/16 is also admittedly produced by the respondent which is in conflict with the age or date of birth of the respondent as shown in Annexure A/1. Both the documents Annexure A/1 as well as R/16 bear signature of the respondent In the cross-examination the respondent has stated that he can not read or write English but he can put his signature in English. There is no evidence to the contrary. The date of birth or age in both the documents Annexure A/1 and R/16 is written in English. Apparently somebody else had written the date or age.
None has been produced to show that he had written the age or date of birth of the respondent in these documents on the dictation of the respondent.
10. Both the sides have cited case-law in support of their contentions. The decisions of the Superior Court are applicable to the facts and circumstances of that particular case only. The question as to what is the date of birth of a person is a question of fact and not question of law. The facts discussed abovet clearly point out that year of birth of the respondent is not 1930 but the preponderance of evidence shows that it was 1938 or 1937.
11. I have already pointed the date and month of birth of the respondent is not disputed but only year is disputed. The retirement age is not disputed. The appellants claim to have extended the retirement age of the respondent by 2 years by letter dated 19-2-1989 which is Exh. A/2. The service of letter of extension in service is denied by the respondent and there is no other proof of service of this letter upon the respondent. The contention by Mr. Rafat Usmani that respondent had accepted his age to be 58 years, when he continued to serve after service of this letter would not therefore have much force. However on the admission of the appellant, that they have extended the age of retirement of the respondent to 60 years, the respondent would be entitled to serve till the age of 60 years. I am inclined to believe the Certificate issued by Chairman of Union Council which shows the date of birth of the respondent as entered in the Birth Register maintained by Union Council was 19-8-1937. The respondent would therefore attain the age of 60 years on 18-8-1997.
' In view of above discussions I find no merit in this appeal which is dismissed with above observation with regard to the date of birth of the respondent.