DECISION ' This appeal is directed against the order of Fifth Sindh Labour Court, Karachi, whereby the respondent's application under section 25-A of I.R.O., 1969, calling in question his premature retirement by the appellant-company was allowed with fifty per cent. Back benefits.
2. Respondent Abdul Mateen was appointed on 3-9-1953 as Fitter. At the time of appointment the appellant being illiterate had not furnished any application in writing giving his particulars regarding age etc. To the appellant company but the company completed their record of establishment and allegedly the signature of the applicant in Urdu was obtained on his nomination under the rules of provident fund.. The nomination form has a column for date of birth on which the type-written date has been shown as October 22, 1931. It bears signature in Urdu of Abdul Mateen.
On October 10, 1991 a letter was issued by the company stating that the respondent would attain age of sixty years on October 31, 1991 when he would stand retired from service of the company.
This letter was refused by the respondent Abdul Mateen. The letter was then sent by registered post but it was received back undelivered. The respondent had sent a letter, dated July 28, 1991 to the company requesting for alteration of his date of birth as 21-6-1934 and not 22-10-1931. In support of his contention he had submitted documentary evidence regarding age in the form of extract from register of birth showing birth of a son to Muhammad Rafiq, Jamadar, at Bhutta village, Keemari, Karachi on 21-6-1934. He had also produced his birth certificate from the record of Municipal Register. The extract was issued on 20-1-1980 and the certificate was issued on application dated 26-1-1959. The third document is the National Identity Card issued to Abdul Mateem on 18-2-1974, which shows his date of birth as 29-4-1934. The signature of the respondent Abdul Mateen on the Identity Card is in English, tallying with his signature of receipt of notice of retirement with the company. The signature on the nomination form in Urdu has been denied by the respondent. This document had not been shown to him at the time of his cross-examination for his admission or denial. The company rejected the request of the respondent for alteration of his age stating that they were unable to amend their record and change the date of his birth as June 21, 1934. The respondent, then, served the company with his grievance notice. After getting no satisfactory reply the respondent filed his grievance application under section 25-A of the I.R.O. Before the Fifth Sindh Labour Court, Karachi, for restraining the company from his premature retirement. Pending the proceedings in the Labour Court the respondent was actually retired on the date mentioned in the notice issued by the company. He, therefore, withdrew his application in the Labour Court as according to him it had become infructuous and he filed a fresh application against his actual retirement.
3. The learned Labour Court found that the actual date of birth of the respondent was 21-6-1934 according to the certificate produced and backed by the National Identity Card. The certificates in original appeared from their condition to be old and tattered. They have gone brown due to storage. They could not, therefore, be doubted as having been fabricated or manipulated after the receipt of retirement notice. The Labour Court, accordingly, directed reinstatement of the respondent from the date of the order i.e, 17-2-1993 and meanwhile allowed fifty per cent. Of the back benefits only because these documents, available with the respondent, had not been filed with the company for such a long time and he was himself to be blamed for the orders of retirement issued by the company.
4. The respondent was then reinstated in service pending appeal against the order of the Labour Court in the Tribunal. On completion of sixty years, according to his own claim regarding his age, the respondent has again been retired on 30-6-1994.
5. It has been argued by the learned Advocate for the appellant company that the age of the respondent in the records of the company was 22-10-1931 according to several documents, including the nomination form. All these documents were, however, typed in English and it cannot be said that they were read and explained to the respondent. The signature on some of these documents are in English similar to the signatures on the Identity Card. But the signature on nomination form mentioning his age is in Urdu quite different from the usual signature of Abdul Mateen. Mere passage of time cannot deprive the respondent from claiming correction of his age according to the birth certificate and identity card. There can be no limitation against correction of the record, nor can any one be estopped from challenging the date of birth as entered in the record of the company.
6. It has next been argued that the grievance application, containing the same facts and same cause of action, having been withdrawn, another application on these facts could not be filed again in the Labour Court. It has, however, been rightly pointed out by the Labour Court in the order that the first application had become infructuous after the actual retirement of the respondent and he was, therefore, under law, compelled to file a fresh application.
7. Lastly the junior counsel appearing for the appellant had made a statement before the Tribunal that the matter was being compromised because the relief of reinstatement no longer existed, the respondent having completed the 3 years of services as claimed by him. This statement has been contradicted ' by the senior counsel for the appellant as a mistake on the part of his junior. But actually the only question that now remains is regarding payment of back benefits for the interval from previous retirement to reinstatement under orders of the Labour Court. The respondent was ordered to receive only fifty per cent, of the back benefits. This amount would appear to be reasonable considering the question of laches on the part of the respondent.