' Peer Muhammad, petitioner in this case is a Driver Supervisor in the service of Sui Northern Gas Pipelines Limited and is posted at Wah. He h.1d joined the Service of the Company in 1964. He applied to the company on 21-12-1987 vide application Annexure 'B' on the record for the correction of his date of birth. It appears from this application that petitioner's date of birth as entered in the records of the company in 1964/65 was 31-12-1935 when he joined the service of the Sui Northern Gas Pipelines Limited but at the time of application was shown as 24-9-1930. He claimed that according to the certificate of his birth he had been born on 28-9-1933 and requested that this should be accepted as his date of birth.
2. The petitioner had joined the Pakistan Army on 24-9-1948. It appears from Annex: R/2 letter dated 24th May, 1983 addressed by the Officer Incharge, Record of Artillery Centre, Record Wing, Attock to the Sui Northern Gas Pipelines Limited that the petitioner's age on 24-9-1948 was 18 years. He was discharged in 1953 and recalled on 1st of June, 1965 and again discharged on 7th of August, 1966.
On the basis of this information the Sui Northern Gas Pipelines Limited corrected the date of birth of the petitioner from 31-12-1935 to 24-9-1930 and informed him of this change vide letter dated 5-1- 1984 (Annexure R/3 on the record). It also appears from documents R.1 and R.1/A filed by the respondent that the petitioner furnished a declaration of his age in 1973 wherein his date of birth was given as 1930. There is an endorsement dated 22-1-1974 of the Doctor of the respondent Company testifying that the petitioner was then forty-three years of age.
3. It would appear from the opinion of the legal adviser of the company dated 6th May, 1984 (copy Annexure A) that the company's procedure for determining age of an employee was, to take into consideration the following factors:-
(i) Matric Certificate for educated persons.
(ii) Discharge certificate for persons who are Ex-Armymen or Ex-Government employees.
(iii) Doctor's certificate regarding age for uneducated persons.
' The Legal Adviser however, opined that where there was a discrepancy between the birth certificate, School leaving certificate and discharge certificate, credence may be given to the birth certificate and school leaving certificate.
4. The Company in reply to the application of the petitioner dated 21-12-1987 informed the petitioner vide letter dated 22--3-1988 (Annexure F on the file) that his date of birth, as originally given by him in January, 1965 was 1935, but was amended in view of the information received from the Pak Army as 24-9-1930 and intimation of this amendment was sent to him by memo dated 5- 1-1984 (Annexure R/3). It was further mentioned in this letter dated 22-3-1988 that in the year, 1973, the petitioner had given his date of birth as 1930 and this statement was certified and countersigned by Doctor Pervaiz Akhter of Rawalpindi. The petitioner was told that he had not questioned the amendment of his date of birth in his service record earlier at any stage. In view of this position, the company regretted its inability to accede to the request of the petitioner at such a belated stage.
5. After the receipt of the letter dated 22-3-1988 the petitioner filed the present Petition No,4A(60)/88 on the allegations that refusal of the company to amend his date of birth was based on mala fides and the impugned order had been passed to provide a handle to the rival group of the trade union which was led by Abid Hassan Janjua. The petitioner alleged that he had been elected as President of the Union for more than 16 years and since annual elections were due on 27-4-1988, the order was passed in collusion with the rival group led by Mr. Abid Hassan Janjua to queer the pitch for him. It was asserted in para 14 of the petition that the respondent company wanted to, retire him at least three years earlier because he had been the President of the Union and was a hard bargainer for improving the terms and conditions of the workers during his term.
According to him the action of the respondent-company was hit by clauses (b) and (c) of subsection (1) of section 15 of the Industrial Relations Ordinance, 1969.
6. Notice was issued to the respondent on 5-4-1988 and stay was refused on 6-4-1988. The petition for stay was not pressed and by order dated 2-5-1988 the learned Member disposed of the petition for stay. The comments were filed by the respondent company on 2-5-1988. By order dated 21-12- 1988, the learned Member held that the respondent company was covered by Pakistan Essential Services (Maintenance) Act, 1952 and returned the petition to the petitioner for presentation before the proper forum. There was an appeal against this order and on 4-4-1990, the case was received back on remand. An interim stay was issued on 18-4-1990 with the direction not to retire the petitioner on 28-9-1990 the date on which his retirement was due according to the record of the company.
7. Evidence was led by the parties in this case. The petitioner himself entered the witness-box as his sole witness. The respondent also produced one witness in the shape of Mr. Muhammad Anwar Bhatti, Personnel Manager of the respondent company. It comes out from the evidence that the petitioner was a member of Sui Gas Pipelines Employees Union, and was a Trade, Unionist of some distinction. He was elected eleven times as President of his Union and had been negotiating successfully for settlements between the CBA Trade Union and the Employers. In his petition, he had stated that the respondent had refused to correct his date of birth, in view of the fact that he had been a hard bargainer. He amplified this statement during his evidence by saying that the Government had announced an increase in the emoluments of workers by 45% in 1981-1982 but the company was refusing to make the payment and it was on account of his efforts that the payment was made and this caused annoyance to the employer. He conceded that the stand of the company was that it was a nationalised concern and the amount could not be paid without the final sanction of the Government. He also conceded that sanction for payment was given by the Director General on 15-10-1985 and an amount to the tune of Rs,80 Lacs was paid in 1986. He admitted that he had been the President of the Union from 1985 to 1989 and had signed the last, settlement in 1989 and the total financial impact of facilities was 27.8 million rupees. He conceded that except for the delay in payment of 45% made in 1986 there was no subject of dispute between him and the employer. He had performed Haj at the company's expense and all facilities including, maternity and medical expenses of his children were provided to him. Mr. M. Anwar Bhatti an Officer in the Personnel Branch of the Company appeared for the respondent and stated that he was in service since, 1964 and during this period except for 2/3 years, Pir Muhammad continued to be the President of the Union since, 1968. He stated that Pir Muhammad and the company were on the best of terms and during the presidentship of the petitioner, no notice for any strike was given.
He stated that the date of birth of the petitioner was corrected on the basis of the army record and he was being retired on the basis of the date given in that record. He admitted that Legal Advisers had given advice that in case of discrepancy in the documents of age, the date entered in the certificate of birth or School leaving certificate may be given credence. He denied that the correction of the date of birth of the petitioner was refused at the instance of Janjua. He admitted that the increase of 45% granted by the Government was ultimately paid as a result of the efforts of the petitioner but denied that employer was unhappy with the petitioner on that ground. Lengthy arguments were addressed both sides in this case and the main point urged by the learned Counsel for the petitioner were:-
(a) that the refusal to correct the date of birth was an act of unfair labour. Practice by the company,
(b) that the petitioner was a victim of discrimination as the three employees namely; Mangta Khan, Ghulam Rasool and Ashiq Hussain were granted extension on the basis of the certificates of birth produced by them,
(c) that the respondent acted with malice in refusing to accept the advice of their own legal advisers.
' I have referred above in detail to the record and have made reference to the allegation of the petitioner in respect of unfair labour practice: The only allegation made in the petition was that he was a hard bargainer and the respondent wanted to punish him for that in collusion with Mr. Abid Hassan Janjua, a Leader of the rival group. No details of hard bargaining or any incidents supporting the allegation of unfair labour practice were mentioned in the petition. During his evidence the petitioner supported this allegation on the ground that since he succeeded in getting the payment of 45% increase in pay to the workers, which was being withheld since 1981-82, the company bore a grouse against him. It may be mentioned that the Sui Northern Gas Pipelines Limited is a nationalised industry and its officers could have no personal interest in withholding the benefits granted by the Government to the workers. The evidence also shows that the trade union led by the petitioner had the best of relationship with the employers during the twenty-two years that the petitioner remained the President. The Director General of the company had sanctioned the payment of the amount in 1985 and the petitioner succeeded in having the payment made in 1986. The fact that the petitioner was a hard bargainer or that he succeeded in having a payment of Rs,80 Lacs made to the workers of the company, does not furnish any basis to hold that the respondents entertained a grudge against the petitioner or had any malice against him for this reason. The grounds urged for holding that respondent's act falls within the mischief of the law of unfair labour practice, are not tenable.
8. So far as the question of discrimination is concerned, the learned Counsel for the Company placed on record papers relating to the change of dates of birth of Mangta Khan, Ghulam Rasool and Ashiq Hussain Driver. It appears from these documents that Mangta Khan's date of birth was corrected from 14-10-1922 to 12-10-1927 on the basis of his school leaving certificate by order dated 14-10-1982. Similarly, the date of birth of Ghulam Rasool was corrected on the basis of his school leaving certificate and his certificate of discharge from the Army by order dated 1-11-1981. Date of birth given in both these documents tallied with each other. The date of birth of driver Ashiq Hussain was also corrected on the basis of his school leaving certificate by order dated 18-7-1984.
9. It would therefore, appear that these three orders were passed on their own merits and long before the petitioner had applied for the correction of his date of birth. The question of discrimination can be considered in the light of the proximity of time and similarity of circumstances. The petitioner applied for the correction of his age on 21-12-1987 and his request was turned down on 22-3-1988. The facts of his case are certainly different and are quite distinguishable from the cases of three other persons mentioned above. He had joined the Army on 24-9-1948 and had given his age as eighteen years. He stated before the Court that he had purposely understated his age at the time of joining the army as he feared that he could be rejected if his age was found to be below eighteen years. At the time of joining the Sui Northern Gas Pipelines Limited, he had given his age as 1935 as he himself admits in his application for correction of his date of birth Annexure B (Exh.PW.1/1 page 7 of the file). In 1973 he had given his date of birth as 1930 and the doctor had testified on 22-1-1974 that he was about 43 years of age. He had been informed on 5-1-1984 vide R/3 that his date of birth had been corrected as 249-1930 and his long silence shows that he accepted that amendment.
10. Discrimination as mentioned in section 15 of the IRO, 1969 has a special connotation and has to be in relation to the trade union activities of a, person and based on the fact that such a person is being discriminated in regard to his employment on the ground that he is a member or not a member or office-bearer of a trade union. In the case of the petitioner, there is no ingredient of discrimination as mentioned in clause (c) of section 15 of the IRO, 1969. It cannot therefore, be held that the petitioner was discriminated against vis-a-vis Mangta Khan, Ghulam Rasool and Ashiq Hussain. Their cases were decided on their own merits long before the case of the petitioner.
It may be mentioned here that in his application for correction of age the petitioner has only referred to his certificate of birth and not his School leaving certificate. The School leaving certificate was introduced later. The respondent sought to examine the Headmaster of the School but he was later on given up. In the written statement filed by the respondent the certificate of birth and the school leaving certificate were described as forged documents. They were placed on record subject to the objection during the examination-inchief of the petitioner. In respect of birth certificate, it was stated in the written statement that the father's name of the petitioner as given in Exh. R/1 a declaration furnished by him in 1973 did not exactly tally with the father's name given in the birth certificate. It was further pointed out that the caste of the father of the petitioner was mentioned in the birth certificate as "Bafinda Musalman" whereas the petitioner had declared his caste as Choudhry in Annexure R/1. As to the school leaving certificate, it was pointed out that according to that certificate, Pir Muhammad Khan had passed Class IV and had then left the School. In Annexures R/1 and R/1-A signed by Pir Muhammad the information served to the Company was that he had studied upto 6th Class. I may also observe here that the School leaving certificate has been issued by Islamia Rehmania Haripur School, whereas the petitioner in his statement said that he had attended Jamia Islamia High School, Haripur and had never joined any other school. In cross-examination, he was not able to name the Headmaster of the school nor could he name any other teacher except his Class Teacher Ghulam Rasool.
11. The learned counsel for the respondent submitted that the certificate of birth of a person or his School leaving certificate may be relevant under section 35 of the Evidence Act but the evidentiary value of such a document will be of doubtful nature if the identity of the person concerned has not been established by other evidence. In this connection he cited a large number of judgments, among them being the case entitled Hemanta Kumar Das v. Alliants Und Stuttgarter Life Insurance Co., Limited reported in AIR 1938 Calcutta 120. It was held that "Entries of the names of persons in a register of births or deaths or marriages cannot be positive evidence of the birth, death or marriage of such persons unless their identity is fully proved (1878 I E R 1501, Rel on)." The rule is now established that the entries in a birth certificate or school certificate have to be established by evidence and identity of the person concerned has to be proved by unimpeachable source. So far as the School leaving certificate produced by the petitioner is concerned, the learned counsel submitted that apart from the objections that he had raised to its genuineness in the written statement, the document was not admissible as it failed to meet the requirement of sections 35 and 76 of the Evidence Act. (Corresponding to sections 49 and 87 of Qanun-e-Shahadat, 1984 respectively.) He submitted that under section 35 the condition precedent for a copy of a document to be admissible is that it should be a copy of an entry in any public or other official book register or record an should have been made by a Public servant or any of the person in the performance of his official duty specially enjoined by law.. The copy should further meet the requirements of section 76 of the Evidence Act as was held by the Lahore High Court in PLD 1962 (W.P.) Lahore 492 Khizar Muhammad and others v. Ghulam Muhammad and others. The objection of the learned counsel to the admission of the School leaving certificate produced by the petitioner is unresistable. The School leaving certificate has been issued by Islamia Rehmania Haripur School and it has not been shown whether this School is a Government Institution. The record of a private educational institution is not admissible as was held in the case of Ch. Muhammad Hussain v.
Muhammad Nawaz alias Dilawar Khan and another (PLD 1969 (Election Tribunal) Journal 111 at page 116-B). Reference may also be made to AIR 1940 Rangoon 191 'Hoak Saing v. Ma E Hla and others'.
The Privy Council held in AIR 1917 Privy Council 197 (1) 'Rai Bhaiya Dirgajdee Bahadar v. Beni Mehto and others'; that an entry made by a Public Officer in discharge of his official duties is relevant but where the officer concerned travels beyond the scope of the duty imposed upon him the admissibility of the document can be questioned. The School leaving certificate coming from a Private Institution which has not been proved to be maintaining records of the description contained in section 35 of the Evidence Act, has therefore to be rejected as entirely inadmissible in evidence. The Supreme Court in 'Muhammad Afzal v. The State' PLD 1976 SC 568 held that the learned Judges of the High Court had fallen into error in taking into consideration a School leaving certificate for the determination of the age of an accused as the certificate had not been proved according to law.
' The copy of the birth entry may be said to be answering the requirements of sections 35 and 76 of the Evidence Act because it appears to have been issued by the District Officer of Health of Abbottabad and carries the certificate at its bottom prescribed under section 76 of the Evidence Act. As stated earlier the rule is now established that without proving the identity of the person mentioned in the birth certificate by positive evidence the birth certificate in itself cannot be held to be proof of the age of the person who relies on such a Birth Certificate. At page 518 of the Monir's Law of Evidence, 1974, fourth Edition, Edited by Abdul Haleem, we find the following statement of law:- "When a birth or death entry becomes relevant under the provisions of this section, a certified copy thereof becomes admissible. But such a certificate does not prove itself and is not proof of age of a person unless the person making the entry or giving information comes forward and connects the entry with individual concerned."
' This observation is based on the case "Biseswar Misra v. The King"(1949 Orissa 22) but I may say in all humility that the above observation reflects the consensus of the judicial opinion on this point in this sub-continent.
12. The petitioner also relied on his identity card in order to prove his age. It is apparent that an identity card is not a document by which the age of a person can be proved. The petitioner admitted during his cross-examination that he had got prepared his I.D. Card from Rawalpindi in 1974 but later on he got another I.D. Card from Abbottabad on 12-5-1987 a copy of which has been placed on record. He did not know that in his earlier card he had mentioned his age as 45 years. A photostat of this Identity Card is on record and the age of the petitioner is noted as forty-five years.
In any case, this piece of evidence is of no avail to the petitioner. The circumstances, under which the second ID Card was prepared, also remained undisclosed.
13. So far as the Legal Advice is concerned, it is no binding upon the employer. The employer's discretion in deciding the case on merits, does not disappear because of a legal advice. The legal advice just stated a principle and of course the employer is free to decide each case on its own facts. In the case of the petitioner two out of the three factors generally considered for determination of age were against him. His own Army record and his own declaration supported by Doctor's opinion on R/1 furnished sufficient basis for H determination of his case coupled with the fact that he remained silent for more than three years after the intimation sent to him in regard to the correction of his age on 25-1-1984 vide R/3. Where the certified copy of a birth certificate was accepted by the Trial Court and the first Appellate Court as against two declarations of age by the appellant furnished at the time of his employment and the High Court on revision had set aside the orders of the lower Court the Supreme Court held that in the absence of any allegation of mala fides against the officers concerned, the disregard of the two declarations signed by the appellant amounted to gross irregularity. "Sarfraz Khan v. Federation of Pakistan" (1986 SCM R 1950 at page 1953). The petitioner therefore can be held bound by his own declaration of age as against the unproved certificates relied upon by him.
14. The result of the above discussion is that the petitioner has not been able to establish a case of unfair labour practice and in view of the conflicting record of his age the employer had the discretion to refuse or accept his application for correction of his date of birth. The discretion does not appear to have been exercised with malice or any ulterior motive. The petition therefore, fails and hereby dismissed.