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Appeal No. FD‑324 of 1979/ Pb., decided on 30th June, 1982.

‑‑S. 25‑A(5)‑Army Discharge Certificate‑Reliance on‑In deciding employee's grievance petition under S. 25‑A, trial Judge relying upon medical report whereby age of employee (by appearance) calculated more than sixty years‑According to Discharge Certificate from Army employee's age about 55 years‑Held, medical re port should not have been relied. upon in presence of discharge certificate as medical opinion about age only approximate and sue kind of evidence can only be resorted to when no other better evidence available.

‑‑ S. 2 (xxviii)‑.Worker and workman, construction of‑‑Trial Judge observing retired person not covered by definition of work man as contained in S. 2 (xxviii) and thus could not lodge petition under S. 25‑A‑Held, retired employee covered by definition of workman and his application under S. 25‑A maintainable.

Pakistan Railways v. Junior Labour Court No. Y 1979 P L C 320 distinguished.

National Bank of Pakistan v. Muhammad Haleem Chohan 1978 P L C 369 rel.

Appellant in person.

This appeal.. arises from the decision dated 12th May, 1979 passed by the learned Presiding Officer, Punjab Labour Court No. 4, Faisalabad whereby the grievance petition of the appellant for his reinstatement in service was dismissed.

3. The appellant was retired with effect from 7th April, 1979 and he challenged the order on the ground that according to his discharge certi ficate from the Army, he had not yet attained the age of sixty years. His discharge certificate from the Army is Exh. P‑1, in which his age is given as 18 years at the time of joining the Army service. The date of enrolment is 7th November, 1942 meaning that he was born, according to this certificate on 7th November, 1924. The respondent relied upon medical report Exh. R‑1 dated 11th July. 1953. In this certificate the age by appearance is given as about 27 years, meaning that he was born on 11^th July, 1916. Exh. R‑1 was wrongly relied upon by the learned trial Judge, because the medical opinion about age is only approximate and this kind of evidence may be resorted to when there is available no other better evidence. Since in the present case, the discharge certificate was avail able, the medical report should not have been relied upon. In the Army, strict scrutiny is made at the time of enrolment, therefore, the age given in Ex. P‑1 cannot be doubted. Even if it be said that age was given in P‑1 not according to any birth certificate but approximately in Exh. P‑1, since the appellant at that time was a boy in teens, the approximate age could be one or two years less or more and the difference could not be more than that. According to the discharge certificate, the age of appellant on 7th April, 1979 was about 55 years and, therefore, he could not be retired. The learned trial Judge relying upon 1979 P L C 320, has observed that a retired person is not covered by the definition of workman as contained in section 2 (xxviii) of the Industrial Relations Ordinance 1969 and thus could not lodge a petition under section 25‑A. In the authority relied upon by the learned trial Judge it has been observed that a person coming under section 25‑A must be in the employment of his employer. The words 'is employed' have been interpreted by my learned brother to mean that the person concerned must be employed at the relevant time. He has further observed that if the intention of the Legislature had been to include the past workers also within the definition of workman, it would have made such an intention clear with the use of appropriate words, which are totally missing in the instant case. Reference has also been made by my learned brother to the definition of civil servant given in the Services Tribunals Act, 1973, but firstly, actually the Services Tribunals Act, 1973 has not defined the term civil servant', but rather has adopted the definition given in the Civil Servants Act, 1973 and secondly, there are no words "has been a civil servant" in it. So even in the de finition of civil servant given in Civil Servants Act, present tense has been used. 1n the Standing Orders Ordinance, 1968 also where the workman has been defined, present tense has been used. If the interpretation given by my learned brother to the words 'is employed' is accepted, then it would mean that a retired, terminated, removed or dismissed person has absolutely no remedy and cannot challenge the order in any Court even in the civil Court. but this is not the intention of law The words "for the purpose of any proceeding under this Ordinance in relation to an indus trial dispute, includes a person who has been dismissed, discharged,, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute, or whose dismissal, discharge, retrenchment, lay off or removal has led to that dispute" have been used to include those persons who otherwise are not covered by the definition of Workman, but in respect of their removal, dismissal, etc., an industrial dispute has been raised or in respect of whom any industrial dispute is pending, or their removal or dismissal has led to the industrial depute. In an industrial dispute any kind of demand can be raised. A demand may be that a particular employee, who has no remedy under Labour Laws not being a workman, be reinstated. I have already expressed my opinion on this point in some other cases such as National Bank of Pakistan v. Muhammad Haleem Chohan (1978 P L C 369) I, therefore, hold that the, respondent is covered by the definition of workman and it has been wrongly held by the learned trial Judge that the application under section 25‑A of the Ordinance is not maintainable.

3. As a result of the observations made above, I accept the appeal and setting aside the impugned decision of the learned lower Court, direct the reinstatement of the appellant in service with back benefits, further directing that be shall be retired on completing the age of sixty years, according to his age given in his discharge certificate Exb. P‑1.

K. M. A, Appeal accepted.

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