' AKBAR M. MEMON, MEMBER---Appellant hereinabove has challenged the order dated 30-11-2000 whereby he was ordered to retire from service with effect from 14-6-1998. The impugned order is reproduced herewith: ' "According to the Service Record, your date of birth is 15 June, 1938. Accordingly your date of retirement from service is 14 June, 1998 an in accordance with Service Regulations. You are therefore hereby relieved from the service from the said date i.e, 14 June, 1998 (close of business 14 June, 1998). All payments made to you subsequent to 14 June, 1998 were wrongful and you were not entitled to any such payment. The said payments shall therefore be adjusted against your final dues.
2. You shall return PNSC car, mobile telephone set and all other property of PNSC TODAY."
2A. Mr. Abdul Ghafoor Mangi, learned counsel for the appellant has argued that the present appellant had joined the sea service as apprentice when there was no question of age, however, he has contended that present appellant joined the respondents when his appointment was made on 24-6-1970 as Chief Officer on certain terms and conditions. He has contended that on 22-12- 1970 be was promoted from the post of Chief Officer to the rank of Master vide letter dated 22-12- 1970. He has contended that throughout his record remained unblemished and at the time of service of the impugned order he was working as General Manager (Operation) with the respondents. He has contended that he got Discharge Certificate from his previous service where his birth date was mentioned as 15-6-1938 and when he come to know about this he sent for his Birth Certificate, which he got issued from Municipal Corporation of Hyderabad (India) where his birth date was shown to be 15-6-1944. He has contended that said birth date was considered by the respondents and even it was mentioned in the list of Shore Officers and staff who were to retire from 1999 till 2004 and also seniority list, which was being maintained by the respondents and both these lists, are available on the file at pages 47 and 55, which clearly show that his birth date was 15-6-1944. He has contended that the appellant was then stunned when he got the letter dated 30- 11-2000 against which he filed departmental appeal on 4-12-2000, which met with a rejection order on 12-2-2001, hence this appeal. He has contended that the respondents have made a mention in the impugned letter that the appellant stands retired with effect from 14-6-1998 and all payments made to him till 30-11-2000 will be recovered from his dues which is on the contrary, anillegal act on the part of the respondents as no executive order can be passed with retrospective effect. He has contended that action of the respondent is not legal as he had served the respondents till 30- 11-2000, as such, the amount paid to him was on account of the service rendered by him which cannot be recovered. In such circumstances, he has contended that the impugned order be set aside and that he be reinstated and be allowed to serve the respondents till the date he reaches the age of superannuation.
3. Mr. Mushtaq Ahmed Sheikh, learned counsel for the respondents has argued that the appellant was in habit of giving fake birth dates. In this regard he has drawn our attention to Annex-R, R/1, R/2, R/3, R/4, R/5. And R/6 and has contended that at Annex-R the appellant had given the date of birth as 15-6-1938, whereas in R/2 only year 1938 was shown. In R/3 and R/4 birth date was shown to be 15-6-1941, Annex-R/5 it was shown to be 15-6-1944 and similarly there is a cutting in the birth date and the date has been mentioned as 3-7-1944 in Annex-R/6. He has contended that the actual birth date as appear from the Continuous Discharge Certificate (CDC) of the appellant was 15-6- 1938 and in case his date of birth is considered to be 15-6-1944 then it was not possible that he got appointment at age of 12/15 years. He has contended that under serial No,21 of the ESTACODE if some body submits forged documents in support of his age no punishment less than that of dismissal was considered to be appropriate and at Serial No,23 it was decided that in case of giving false information steps should be taken to see the cases are tried in a summary manner. He has contended that the appellant has rightly been retired and he cannot be allowed to reap the fruit from the fraud committed by him. He has lastly contended that the respondents were within their rights to have made a note in the order of the recovery of the amount which was paid to him beyond 14-6-1998 as he would have reached the age of superannuation on that day.
4. Mr. Mangi, learned counsel for the appellant, in reply, has contended that under law amount paid to the appellant could not be recovered as he had rendered service upto 30-11-2000 and in case such order is passed, he would be satisfied if the appellant's is allowed to retire from the same date without any deduction from his dues. In support of his contentions, he has placed reliance on PLD 1992 SC 207.
5. After hearing the arguments of 'learned counsel appearing for the parties, we have gone through the appeal file.
6. At the very first instance, we would like to draw the attention of the corporation like the present respondent that utmost care should be taken in making the appointments and particularly they should be strict in knowing their qualification. When such a qualification certificate or degree is placed on record, the same be got verified so that there should be no difficulty with any of the departments in the manner in which it has arisen in this appeal. In the instant case there is dispute of date of birth and the respondents initially accepted the birth date of the appellant to be 15-6- 1938 at the time when he was initially appointed on 22-6-1970, though the appellant had mentioned about his qualification, but no certificate was obtained particularly of Matric from which they could have verified the birth date of the appellant. Subsequently the appellant went on mentioning different dates as is evident from Annex-R/3, R/4, R/5 and R/6, the same were being kept on record and the date shown in R/5 was being maintained by the respondents in list of Shore Officers and staff, who were to retire during 1-1-1999 to 31-12-2004 available as Annex-E page 47 of the appeal file and similarly the seniority list page 55 available on appeal file. Both these documents show the birth date of the appellant as 12-7-1944 and 3-7-1944 as against the certificate of birth produced by the appellant Annex-D/6 page 45 available on file where date of birth of the appellant is shown as 15-6-1944. When the dates were not tallying with each other no such query was made by the respondents and the appellant went on working till 30-11-2000 when the impugned order was passed. In all fairness the respondents ought to have taken action against the appellant, but this was not done and simply he was ordered to retire. We are, however, of the view that respondent ought to have acted legally as no executive order can be passed with retrospective effect. On this proposition, we are fortified by the law laid down by Hon'ble Supreme Court in 1996 SCM R 201. Similarly the respondents cannot make recovery of the amount as the appellant had rendered the service till 30-11-2000 as has been held by Hon'ble Supreme Court PLD 1992 SC 207. In such a situation, we are of the view that no case of reinstatement is made out and considering the request of Mr. Mangi that he would be satisfied, if appellant is ordered to retire from the date of impugned order, it appears that Mr. Mangi has rightly submitted so and taking into consideration the said argument, we modify the order of retirement from 14-6-1998 to that of 30-11- 2000 as the appellant had rendered such service during that period. At the same time, it was an act of slackness on the part of the respondents who did not react well within time and went on keeping the papers relating to birth dates of the appellant on record and direct the respondents to release the pensionary benefits within four months of this judgment.
7. With the above modification, appeal in hand stands disposed of with no order as to costs. Parties concerned be informed accordingly.