DECISION ' This appeal has been filed by appellant Muhammad Shafi who was employed as driver in the establishment of the respondents and had been working in that capacity since 18-7-1969. On 27-11- 1995 the respondents' issued the retirement Order of the appellant whereby he was to retire with effect from 31-12-1995. As per settlement with CBA, the retirement age at the relevant time was 60 years. As the appellant claimed to have been born at Karachi on 17-7-1943, the retirement order was unacceptable to him. He made efforts to have the respondents correct his birth date on the basis of birth certificate issued by the KMC as well as the affidavit of his real uncle Pir Bux, who had, however, expired 5 years ago. The respondents refused to correct his birth date and consequently the appellant was not reinstated in service. He was, therefore, contained to serve grievance notice on the respondents requesting therein that his birth date be corrected and also he be reinstated in service. According to appellant the correct birth date (i,e, 17-7-1943) was communicated to the respondents by letter, dated 11-11-1974 but they gave no reply to the same. After the appellant's retirement the respondents claimed to have issued letter, dated 17-11-1974 to him. Thus, the respondents did not bother either to correct his birth date or hold enquiry for determining the same but instead they suddenly passed order of his retirement. As such the appellant approached the Labour Court No,V at Karachi but his application did not find favour with the learned Lower Court, and therefore, it was dismissed.
2. The respondent's case as reflected in their reply filed in the Lower Court is that the retirement of the appellant was based on the birth date given by him at the time of seeking employment. The Certificate of KMC in this regard produced by the appellant could not be considered as the authority issuing that Certificate had mentioned therein that his birth was not reported to KMC.
Therefore, the respondents did not accept 17-7-1943 as the appellant's birth date. It is also the respondent's case that in course of his employment, the appellant had himself conveyed to the E.O.B.I., his date of birth as 31-12-1935 and filled in pension claim form, dated 27-3-1991 on that basis and further he has been availing pension from the said Institution accordingly, therefore, the respondent's plea is that the appellant's birth date is not genuine inasmuch as that he has failed to produce any document or proof in support of his birth date.
3. The learned Lower Court after due consideration of the respective versions of both the parties answered the points of determination accordingly and in consequence dismissed the appellant's grievance petition.
4. The moot point for decision in this appeal is the appellant's age because then alone it could be held if he was rightly retired on reaching the age of superannuation. The appellant in my opinion has failed to discharge the burden of proving his correct birth date. The appellant's Advocate did not put any question to the witness of the respondents, challenging his statement that the particulars submitted by the appellant at the time of seeking employment included his birth date and as such the truth of his statement in this regard has been indirectly admitted. Apart from this, it is admitted by the appellant in course of his cross-examination that the letter, dated 16-12-1990 issued to the E.O.B.I. Bears his signature. He has produced the letter as Exh.A.1. No doubt this letter bears his signature indicating that his birth date as per company's record is 31st December, 1935.
Obviously he made no protest or raised any objection over mentioning of the above date as his birth date before signing the letter. As a matter of fact the letter in which the said date is mentioned was addressed to the Director E.O.B.I. South Region conveying to him to Certificate of the company that the appellant was his permanent employee and had joined the service on 19th July, 1969 and further that he joined the E.O.B.I. Scheme on 1st July, 1976.
5. The appellant has laid great emphasis on the Certificate of KMC. One Muhammad Ibrahim son of Noor Muhammad, the Incharge of Births and Deaths in KMC Karachi has been examined as a Court witness. Though he has admitted that appellant had made application, dated 21-12-1995 unaccompanied by any affidavit for issuance of his Birth Certificate yet since there was not entry in year 1943 (alleged year of his birth) the application was returned to him intimating him that there was no entry in the record. He admits that the Certificate was issued by the KMC but the birth was not reported to it.
6. Apart from the above it is appellant's case that he had been moved the authorities of the company for correction of his birth date as far back as 1974 but no action was taken on that application. His contention is that they did not care even to reply it. If the appellant is believed to have made such move for correction of his birth date in 1974 he would have surely taken further steps when no response was made by the respondents but instead he kept quiet as if forgetting the matter altogether. That was the appropriate time for him to have served grievance notice on his employers and since his statement is that they did not care to reply to his application he should have taken the matter to Labour Court at that time. The present grievance petition was filed on 5- 3-1996 though it should have been filed in 1974. He has failed to explain such undue delay of more than 22 years in agitating his matter in the Court.
' For the foregoing reasons, I have come to the conclusion that the Lower Court has rightly dismissed the grievance petition of the appellant because he miserably failed to prove his birth date to be of 1943 and not of 1935. Consequently the appeal is dismissed.