By a judgment announced on 13-3-1993, ,learned Presiding Officer of Punjab Labour Court No. 8, Bahawalpur (Malik Mushtaq Ahmad) dismissed Muhammad Yar's grievance petition, filed on 24-9- 1991 under section 25-A, Industrial Relations Ordinance, 1969. He has come up in appeal to this Court.
2. Muhammad Yar was a 'Baildar', working with the District Council, Bahawalnagar, and he was retired from service on 29-6-1991, on the assumption that he had attained the age of sixty years. He maintained that 1931 was not the year of his birth and that he would reach the age of superannuation in the year 2002. The plea, however, was not accepted by the learned lower Court.
3. Objection about lack of jurisdiction of the Labour Court was not raised by the respondent in that Court; but even if it is assumed that being a legal objection, it can be taken up at any the, and before any forum, it may be stated that the proposition, that as Baildar, Muhammad Yar was a workman, entitled to invoke the jurisdiction of the Labour Court for redress of his grievance, can hardly be disputed. It was held in 1989 PLC 646 and 1992 PLC 575 that a Municipal Committee or a District Council, being an autonomous local body, would be covered by the definition of 'industry', and the provisions of both the Industrial Relations Ordinance, 1969, as also the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would apply to its low- paid employees, to whom the forum of Labour Court would be available.
4. As regards the merits of the matter, it may be mentioned that in the service book, Exh. R-1, against column No. 6, year of birth o Muhammad Yar has been inserted as 1931. This column pertains to height of the person concerned, and not to his date of birth, relevant column for which is No. 5. Entry there has been erased by application of dark brown material. The learned lower Court is of the view that it was blank, as no words or figures are decipherable underneath, and by rubbing a colour pencil, the writing, if any, has been made doubtful in order only to help or favour Muhammad Yar. Figure ' 1931', which finds mention against column No. 6, has been treated to be authentic by the Court below, and special emphasis has been laid on the fact that although the service book was prepared, or recording of entries therein was commenced in January, 1972, the official did not object to any entry and slept over the matter for such a long period, although it was open to him to have made a move for correction of the entry about his date of birth within a limited period, as prescribed by the rules. His thumb-marks were got affixed against yearly entries right up to 1985, and the same must be taken to testify that the entries in the service book, according to the official, were alright and there was nothing wrong with the same. He had even been confirmed in service on 1-7-1985, and throughout this period he had remained reticent, and presumption would be that even he himself had considered his date of birth as entered in his service book to be correct.
5. What has, however, to be borne in mind is as to what date of birth had actually been entered in the service book. Why cannot benefit of doubt be conceded to the poor worker, who maintains that the office had indulged in mischief in rubbing or mutilating the date of birth, as initially entered. He does not remember correctly his date of birth, similarly as is usual with illiterate people.
6. Muhammad Yar obtained his national identity card on 6-1-1975, wherein his age was entered as thirty years, from which it would follow that he was born in the year 1945. On 28-7-1977 he was referred to the Medical Superintendent, D.H.Q. Hospital, Bahawalnagar, for his medical examination.
There he was described as thirty-five years old, meaning thereby that his year of birth was 1942. It cannot be disputed that as he was not in possession of any educational certificate or birth entry, having been issued by a local body, he had been stating his age at random. In the opinion of the Court below, the aforesaid to documents do not support each other and have, therefore, to be discarded and cannot be taken to furnish any sure proof of age of the person involved. That may be true, but in absence of a school certificate or village/union council certificate, one of these documents will have to be relied upon, especially as the service book carries a doubtful entry, and if at all he had given his date of birth when it was initially drawn up, it was by guess, and the one entered against column No. 5 is no longer B legible. 1931 as the year of birth inserted in column No. 6 cannot be considered to be the correct entry, as it has not been recorded in the relevant column and, secondly, as it appears to be in the nature of an interpolation, having subsequently been made in an unauthorised manner. Treating his year of birth to, be 1931, he was retired in the year 1991, rather prematurely.
7. It was pronounced in 1990 PLC 620 (Labour Appellate Tribunal Sind) and 1994 PLC 1 (Labour Appellate Tribunal Punjab) that if there was an overwriting or a surreptitious entry, the medical certificate must be treated to be more reliable. In the case reported as 1990 PLC 620, the record maintained by the management carried 1925 as the year of birth, it was 1936 in the national identity card and 1934 in the Company's record. The reported case has an obvious similarity with the one in hand, and dispute about the date of birth was settled by reference to the certificate having been furnished by the Civil Surgeon; the order of the management retiring the appellant from an earlier date was set aside and his retirement from a subsequent date was ordered. In 1994 PLC 1, it was laid down by this Tribunal that the employee had a vested right to continue in service till he attained the age of superannuation, as furnished by medical opinion. Premature retirement having adversely affected the guaranteed right of the employee, he was entitled to an opportunity of hearing, and if the same was denied, the principle of ' audi alteram partem' having been infringed, such an order would manifestly be unsustainable. His Lordship Mr. Justice Muhammad Munir Khan of the Lahore High Court had made similar observations in the case reported as 1991 PLC 801. In the said case, the affected official had been referred to the Medical Superintendent for ascertaining his age. Labour Court had directed the worker's reinstatement in service, but the Labour Appellate Tribunal had reversed the decision. In the opinion of the Honourable High Court, this Tribunal had, without recording cogent and sound reasons, ignored the medical opinion and treated the entry in the) service record to be conclusive proof of age. It was pronounced that there was no justification for excluding such opinion from consideration, when the department had itself opted for medical examination of the employee. Record C of age maintained by the department being contradictory, the Labour Court was wholly justified in giving preference to medical certificate over the inconsistent record maintained by the department, and the Tribunal had not adequately attended to the reasons that had prevailed upon the lower Court m; support of its decision. Rules of justice and equity required that benefit of I doubt in matter of age should be given to the employee and preference be, given to the medical certificate over the contradictory or doubtful service record. This authority, I think, is applicable to the instant case on all fours.
8. I fail to follow what cogent evidence, other than his identity card and medical examination certificate, the appellant could tender, particularly when he had not been able to lay hands upon his birth entry, available in village record, or a school certificate, being illiterate. The learned lower Court has drawn an adverse inference because of inability of the appellant in producing such proof and because of wavering statement as regards his age made before the doctor and before the officer who prepared his national identity card. The Commissioner, on a reference made to him, had ordered (Exh. R-4) that the entry in the service book be given credence. Question, however, arises. As to what entry in the service book should be regarded as correct, the one against column No. 6, or the other one, which was supposed to have been recorded in column No. 5, but is no longer decipherable. The entry in column No. 6 (1931) cannot be given any importance, for obvious reasons. It is dubious, as it appears to have, some the later, been made in intriguing circumstances, its ink is different from that of the other entries and it has not been inserted against the relevant column. I must make mention of the fact that even from appearance, Muhammad Yar does not seem to be that old. Out of to entries, which have now to be given due consideration, I would consider the one to be less favourable as more authentic. On his medical examination, which might have been undertaken for his medical check-up, and not exactly for ascertainment of his age, he was stated to be thirty-five years old, i.e. Having been born in the year 1942, the medical check-up having been performed on 28-7-1977. He would acquire the age of superannuation on 27-7-2002. I would set aside the finding arrived at by the learned Labour Court and would accept Muhammad Yar's plea and order that) he would be deemed to have attained the age of superannuation on the aforementioned date. He shall be reinstated in service, and having prematurely been retired, for which event he was not at fault, he shall also be paid half of his back benefits, as he has not performed duty, from April, 1993 onwards. The Labour Court had, vide order dated 24-2-1991, r suspended the order of his retirement, with the result that he remained on duty and had also been getting his emoluments, till such the he was finally asked to quit, following the decision of the Labour Court, having gone against him. In the reported decision, Muhammad Shafi v. Karachi Shipyard and Engineering Works (1990 PLC 620), the appellant had been ordered to be paid 50 % back benefits, and to the same quantum, I hold Muhammad Yar, appellant, to be entitled to. He shall, however, remain in service till 27-7-2002.