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Appeal No. SUK‑349 of 1981, decided on 7th April, 1982.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑

‑‑--S. . 25‑A‑Grievance notice upon employer‑Essentially to be in writing‑Oral representation‑Cannot be considered as a grievance notice.

S. W. H. Jafri v. Muhammad Salim Shaikh 1979 P L C 431 ; Habib ullah v. Divisional Superintendent, Pakistan Railways etc. 1981 P L C 605 and Abdul Rashid v. Karachi Road Transport Corporation 1981 P L C 915 rel.

(b) Industrial Relations Ordinance (XXIII of 1969)‑

--‑‑ S. 25‑A‑Petitioner seeking correction of entry regarding age and date of birth and consequential relief against premature retirement‑Grievance notice served after receipt of notice from employer indicating alleged erroneous age and praying for correc tion of same‑Grievance petition filed after retirement‑Objection that grievance notice being in respect of expected retirement whereas grievance petition in respect of actual retirement ‑‑‑Repelled- Petition in circumstances, held, maintainable because of absence of any difference in grievance notice and petition.

Muhammad Rauf Khan v. Messrs National Cement Industries Ltd.

1981 P L C 516 distinguished.

(c) Industrial dispute‑--

‑‑ Age‑Date of birth‑Assessment on basis of medical examina tion‑Medical opinion vague without any supporting evidence or indication of tests carried out to determine same‑Entry in school leaving certificate, in circumstances, held, to be preferred to medical evidence.

Mahmood Abdul Ghani for Appellant.

Hassan Hameedi for Respondent.

Date of hearing : 7th April, 1982.

This appeal by the General Manager, Rohri Cement Works, is directed against the decision of the learned VIIth Labour Court, given on 10th June, 1981, allowing the grievance petition of the respondent work man against his retirement on the basis of the management's letter, dated 1st July, 1980, and directing the management to re‑instate the respondent in service with full back benefits.

2. The facts, which have given rise to this appeal, briefly stated, are that the respondent is an old employee of the Rohri Cement Works having been appointed therein as a Mason on 5th October, 1942. No age of the respondent appears to have been recorded at the time of his first appoint ment. It. is, however, an admitted position that in 1955. medical examination of the employees of Rohri Cement Works was conducted fort the purposes of ascertaining their age. It is claimed by the appellant that the age of the respondent was estimated on the basis of that medical examination, as 35 years, and such intimation was given to the respondent and his signature obtained on the written intimation, dated 9th December, 1955. It appears that the respondent somehow became aware of the policy of the Rohri Cement Works of retiring its workmen on attaining the age of 60 years, based on the estimation of age by medical examina tion. The respondent, presumably fearing that he would be retired much earlier than his actual age warranted, took the precaution of obtaining a certified copy of his School Leaving Certificate on 18th September, 1978, which indicated his date of birth as 2nd January, 1927. However, this School Leaving Certificate appears not to have been sent by the respondent to the appellant until some time after the receipt by him from the management of the letter, dated, 1st July, 1980, informing him that according to the record maintained by the company, he would be due to retire from the company with effect from 30th September, 1980, (afternoon) on attaining the age of 60 years. The respondent appears to have made some representations to the management against the said letter of retirement but as they proved fruitless, he served a formal grievance notice, dated 29th September, 1980, upon the management, which letter is said to have been received by the management on or about 30th Sep tember, 1980. Along with this notice, the School Leaving Certificate of the respondent, showing his date of birth as ‑2nd January, 1927, was enclosed. The respondent is said to have been retired with effect from 1st October, 1980, in accordance with the management's letter, dated 1st July, 1980, and the grievance notice of the respondent was rejected by the' management, vide their letter, dated 11th October, 1980. The respondent. thereupon, preferred a grievance petition before the learned Labour Court which has allowed the same, as already stated. The learned Labour Court has pointed out in its decision that the authenticity of the School Leaving Certificate of the respondent has not been challenged by the appellant. It was further influenced by the fact that the appellant him self had recommended to the Head Office at Lahore vide his letter, dated 15th March, 1980, that he may be permitted to record the date of birth of ‑the respondent as given in the School Leaving Certificate produced by him. It has been admitted by witness, Abdul Aziz, Assistant Welfare r: Officer in the Rohri Cement Works, that the Head Office had left the matter to be decided by the local office at Rohri. However, on getting such permission, the management at Rohri appears to have taken an altogether different stand and decided upon retiring the respondent in Accordance with the estimation of his age according to the medical examination conducted in 1955.

3. I have heard Mr. Mahmood Ghani, the learned counsel for the General Manager, Rohri Cement Works, and Mr. Hassan Hameedi, who appeared for the, respondent, Mr. Mahmood Ghani assailed the impugned decision of the learned Labour Court on the following 3 grounds, namely :‑

(1) Whether a valid grievance notice was served by the respondent on the appellants ( ).

(2) What is the actual pause of grievance of the respondent and whop did it arise

(3) Whether the Labour Court was entitled to direct re‑instatement in service of the respondent with effect from 1st July, 1980, the date of the notice of retirement. when he was actually retired with effect from 1st October, 1980.

4. It was submitted by Mr. Mahmood Ghini that the settled law is that the maximum period of 21 months, within which the grievance petition is required to be filed, begins to run from the service of the first grievance notice, whether it is styled as representation or mercy petition, appeal, etc. He pointed out that it has been admitted by the respondent himself in paragraph 5 of his grievance petition that on receipt of the notice of retirement. dated Ist July, 1980, he had made representations to the management against the same, but as he received no reply from the management, he submitted a formal grievance notice on 29th September, 1980. As the law does not prescribe the form of the grievance notice, the prescribed period of limitation will begin to run from the first notice, provided it fulfills the requirements of a valid notice under subsection (1) of section 25‑A, I. R. O., and all subsequent notices would be ignored. The legal petition in this behalf has been adequately dealt with and clari fied in the 2 decisions of our High Court reported in 1979 P L C 431 and 1981 P L C 605, as also in the decision of this Tribu nal, reported in 1981 P L C 915, and in the unreported decision of the Tribunal in Appeal No. KAR‑781/80, decided on 15th December, 1980. It has, therefore, to be seen whether the representations referred to by the respondent in para. 5 of his grievance petition fulfil the requirements of a valid grievance notice for the purposes of subsection (1) of section 25‑A, 1. R. O. The twin requirements of such notice are, firstly, that it should be given by the aggrieved workman himself or it should be given through his Shop Steward or Collective Bargaining Agent, and secondly, that it should be in writing. It was strongly urged by Mr. Hassan Hameedi that the second requirement of a valid notice is wanting in the instant case as there is nothing to indicate that the representations made by the respondent to the management were in writing. I am inclined to agree with him as apart from the fact that it is neither asserted by the respondent nor by the appellant that these representations were in writing but further no copy of those representations g if they were in writing has been produced. The absence of any copy of such representation seems to suggest that very likely the representations were made orally or through the Collective Bargaining Agent. No doubt, in para 6 of his grievance petition, the respondent has stated that not having received 'a reply to his representations, he submitted. formal grievance notice to the appellant, but a reply could be expected both to oral representations as well as to the written notices. As such, the admission of the respondent that he received no reply to his representa tions does not suggest that the representations must have been in writing, Since it has not been established that the representations made by the appellant are in writing, they do not qualify to be considered as grievance notices for the purposes of subsection (1) of section 25‑A, I. R. O. This leaves us only with the grievance notice, dated 27th September, 1979. Since this was admittedly received by the appellant on 30th September, 1980, it was received within the prescribed period of 3 months from the receipt by the respondent of the retirement notice, dated Ist July, 1980.

5. It was next submitted by Mr. Mahmood Ghani that whereas the grievance notice given by the respondent to the appellant was respect of his expected retirement from service on a future date, namely 1st October, 1980, the grievance petition was in respect of the actual retire ment of the respondent and the prayer was for his being allowed to continue in service till he had attained the age of 60 years in accordance with his School Leaving Certificate. In support of his contention, Mr. Mahmood Ghani relied upon the decision of this Tribunal in the case of Mohammad Rauj Khan v. Messrs National Cement Industries Ltd. (1981 P L C 516).

The facts of the reported case, however, were materially different from those of the present case. In that case, the aggrieved "workman, upon being given notice of his impending retirement, served a notice through an Advocate‑some 3 weeks before he was due to retire. It was held that the grievance notice was bad for 2 reasons. Firstly, it was given through an Advocate, and secondly, whereas the notice challenged the impending retirement, the grievance petition questioned the actual retirement of the workman which had taken place in the meanwhile. In the instant case, the grievance notice challenged the fixation of the age of retirement of the respondent on the basis of medical examination in 1955, as intimated to the respondent, through the notice dated 1st July, 1980. Though the grievance petition was admittedly filed by the .respondent after he allegedly had attained the age of 60 years, according to the notice. dated 1st July, 1980, it really questioned the fixation of the respondent's age as per the medical examination of 1955, and he demanded the withdrawal of the said notice, dated 1st July, 1980. The grievance, therefore, of the respondent both in the grievance notice and in the grievance petition, in my humble opinion, remained the same, i.e., wrong determination of the age and date of birth of the respondent, for the purposes of his retirement, though as a consequential relief, he also sought his continuance in service till he had attained the age of 60 years, according to his School Leaving Certificate. It goes without saying that if the grievance of the respondent as stated in his grievance notice, namely, the correction of his date of birth in accordance with the School Leaving Certificate was redressed and the notice, dated 1st July, 1980 was withdrawn, he could not have been retired with effect from 1st October, 1980. The grievance complained of by the respondent both in his grievance notice and grievance petition being substantially the same, I am inclined to agree with .the view that the grievance petition of the respondent was maintainable.

6. It only remains to be considered whether the age of the respon dent as given in the School Leaving Certificate is to be preferred the one estimated on the basis of the medical examination of 1955. Mr. Mahmood Ghani submitted that in the peculiar circumstances of the case, the medical certificate should be given preference over the School Leaving Certificate. He pointed out that the medical examination was carried out as far back as 1955, and the respondent was made duly aware of the fact that his age had been registered on 35 years by the notice, dated 9th December, 1955. Apart from the fact that the respondent had denied the receipt of this notice, though he has admitted that he was medically examined and that the Doctor of the factory had asked him about his age the factory Doctor's certificate merely stated that the respondent's age appears to be 35 years. The certificate does not show on what basis this estimation was made. In the case of Ghulam Khan v. Divisional. Superintendent, Pakistan Railways, decided on 16th September, 1981, this Tribunal, while repelling the proposition that the medical certificate issued by the Medical Officer, Khanpur, showing the age of the employee as 55 years, should be preferred to other evidence produced by the Railway administrations observed as follows :‑

"The Khanpur Medical Officer has himself, in leis certificate only given the approximate age of the appellant. This estimate by the Medical Officer is based purely on the external examination of the appellant. It is well known that such examination is not a satisfactory method for determining the age of a person and that in such cases, there is always a likelihood of a wide margin of error. It is common knowledge that the ageing process may be hastened or retarded on account of wide range of factors and circumstances such as dietary habits, absence from or repeated attacks of disease, climate conditions etc. According to Modi's Medical Jurisprudence and Toxicology, Twenty‑First Edition, the estimation of age from the teeth with X‑rays with some amount of certainty by noting the number and position of teeth erupted is only possible up to 17 to 20 years of age and beyond that it is merely guess work. In the same treatise, it is recorded that the progressive increase in height and weight according to age varies so greatly in individuals that it cannot be depended upon in estimating are in medico‑legal cases. As regards the minor signs, like hair, on the fact, body, pubes and axilles, which are some of the factors upon which the estimate of age of the appellant has been based in the certificate of the Medical Officer, Khanpur, according to Modi, gray hair is some times seen among young people and in a few cases, it is a hereditary peculiarity. According to the same authority, the appearance of wrinkles on the fact can give no proper estimation of the age of a person as wrinkles have been as early as 20 years of age and some times wrinkles may not appear until a very later age as it depends more or less on the nutrition of the body."

7. As against the vague medical opinion, without any supporting evidence or any indication of the tests carried out for determining the age of the respondent, the School Leaving Certificate produced by the respondent is based on the entries made in the School Admission Register on 1st February, 1934, the date of admission to the School of the respondent and 30th April, 1934 when he left the School after a short stay. I have myself seen the Register of Admissions which was produced by the Head Master of the school. It appears to have been kept carefully. I would like to record my appreciation of the care taken by the School authorities in maintaining such an old record. It is true that the age as given in the School Leaving Certificate is not the best proof of the age which would be the certificate of birth or even the vaccination certificate provided the', vaccination i5 done within 6 months of the birth, but in the absence of such evidence, it would be probably the next best evidence. In any case, it is to be preferred, in the absence of special circumstances to the contrary, to the medical evidence. There are no special circumstances casting doubts C upon the authenticity of the School Leaving Certificate of the respondent. The respondent was admitted to the lowest class (Nursery), when he was about 6 years of age, which would be over the average age when children are normally admitted to such class. I am, therefore, of the opinion that the Kohri Cement Works had wrongly fixed/determined the age of the respondent on the basis of the medical examination carried out in 1955.

8. For the reasons discussed by me above, I would concur in :he direction given by the learned Labour Court and I hold that the respon dent was wrongly issued with the notice, dated Ist July, 1980, and retired with effect from 30th September, 1980 (afternoon), and that he continues to remain in service until he attains the age of retirement in accordance with the School Leaving Certificate. I am, however, not inclined to award back benefits to the respondent in the special circumstances of the case. In the first place, apparently, the respondent himself gave wrong age to the Medical Officer, who had examined him in 1955. Furthermore, though the respondent had obtained his School‑ Leaving Certificate as early as on 18th September, 1978, he sent the same to the appellant along with his grievance notice, dated 29th September, 1980. Perhaps if he had sent a copy of this Certificate before he received the notice of his retirement, the appellant might have taken a different view of the matter. The back benefits deposited by the appellant in the office of this Tribunal are ordered to be refunded.

Order accordingly.

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