Find a Lawyer

Application No. 121 of 1984, decided on 16th July, 1985.

‑‑‑ Date of birth‑ ‑Superannuation‑‑No rules produced indicating fixed age for retirement‑‑Age as assessed by authorised Medical Officers at different times differing‑‑Workman claiming to have been retired pre mature‑‑Retirement order in circumstances held not sustainable‑‑Labour Court setting aside impugned retirement order and directing for production of any other proof regarding age and also for medical examination of workman by a Medical Surgeon of choice of both management and workman regarding fitness of workman for duty because, in absence of rules, a workman even on attaining age of 60 years may be capable to perform duty‑‑Industrial Relations Ordinance (XXIII of 1969), S. 25.

Shabnam Silk Mills v. Khushi Muhammad 1979 P L C 129 and Kettlewell Bullen R Co. Ltd., v. Kettlewell Bullen & Co. Ltd. 1964 LLC 84 rel.

P L D 1977 Kar. 168; 1980 P L C 716; 1980 P L C 1131; 1980 PLC 224; 1980 P L C 175 and 1980 P L C 269 ref.

Ali Amjad for Applicant.

Kamal Mansoor Alam for Respondent.

This is an application under section 25‑A, I.R.O. filed by Mr. Mehmood against Messrs Sind Alkalis Limited, challenging the retirement from the service of the respondent company.

2. Applicant was employed as Kooli since 12‑9‑1967. There was notice issued by the company to all the workers to produce documentary proof of the age by 22‑12‑1983. Applicant made application to the Manager Administration that he was examined by Civil Surgeon Mr. Aftab Ahmed Qureshi and produced certificate.

3. On 26‑12‑1983 applicant submitted certificate of civil surgeon where his age was 55 years.

4. On 28th of December, 1983 applicant was served with the letter of retirement from 31‑12‑1983 and was retired from service.

5. Applicant claims that his retirement is not based according to law.

6. Respondent‑company has contended that the applicant and also other workers whose age was not on the record were referred to certified surgeon in August, 1973 and the age was certified to be 50 years at that time. He was also informed of his retirement in December, 1983 but he sent the letter of the subsequent age opinion with ulterior motives.

7. Respondent has contended that his retirement was according to law and he has no cause of action.

8. Following were the points for determination:

(i) Whether the retirement was legal

1. Mr. Mahmood who was employed as a Coolie on 12th September, 1967, has challenged his retirement of 31st December, 1983.

2. Mr. Mahmood's contention is that on 26‑12‑1983 he was certified to be 55 years old by the civil surgeon and, therefore, his retirement on 31st December, 1983 was premature.

3. Respondent has contended that the certifying surgeon had assessed age of applicant Mr. Mahmood in August, 1973 as 50 years and therefore, he has been rightly retired on reaching the superannuation age of 60.

4. In other words the respondent has made the calculation of his age from August, 1973 upto 31st December, 1983 more than 60. In this context the respondent has referred the letter of 28th December, 1983 by which he was retired and asked to collect the dues.

5. After referring to the evidence, which has been brought on the record number of documents have come on the record namely appointment slip which is said to have been issued, as of Indus Chemical Alkalis Limited showing the age 46 years and the date of appointment as 12‑9‑1967. There is also another age certificate issued by the Civil Surgeon, Karachi in the year 1983 where Mr. Mahmood has been shown as 55 years old.

6. There is third letter which has come on the record of this Court as the referable assessment of the age by the certifying surgeon, in the year 1973 where he has been shown on 30‑8‑1973 as 50 years old.

7. Besides these documents there is reference of certain applications made by Mr. Mahmood A/5 to the Manager, Administration and Personnel which reads in paragraph 1 as follows:

"It has been stated that there is no record of my age on the papers of company. This is strange because as far I am‑ aware, copies of the appointment pro forma maintained by the company and appointment letters issued contain the age of workman concerned, he has been appointed by the company. It is inconceivable that the employment pro forma or appointment letters in the case of permanent workman would not be found in the record of the company."

There is also another application A/3 where Mr. Mahmood Khan was asked to appear for medical check‑up and put certain questions to the management what for he is being referred, he wanted the details from the management about the medical check‑up.

8. With this background, this is to point out, that document of age certified by the certifying surgeon was sent to the expert and also the applications A/3 and A/5. The Expert remained silent about the comparison of thumb‑impressions. In other words there was no opinion. So this Court is left only with the evidence of the applicant, the identity card slip, the Civil Surgeon Certificate and the form of old age benefit.

9. In para. 2 of the written statement the Court has also referred certain admissions of the respondent where they have admitted themselves that age of applicant or other employees was not on the record and, therefore, was referred to the surgeon in August, 1973 when the certifying surgeon assessed the applicant's age as 50 years.

10. It is an admitted position that there is no birth certificate or school certificate or parent certificate produced by Mahmood or by the respondents.

11. So the assessment of age is being determined from the documents which have come on the record, and any such admissions made by Mr. Ma h mood.

12. On the record of this Court, there is also appointment slip but this has not been mentioned anywhere in the evidence of the respondent or in the application of Mr. Mahmood that in the year 1967 his age was 46 years. Mr Mahmood has produced the photostat copy. If it is a photostat copy, the original must be with the respondents which has not been produced or there is any mention in the written statement about this document in particular. If the date of this document is examined of appointment as 12‑9‑1967, his age has been shown 46 years. His age will be 62 years at the time of retirement in 1983. Unfortunately this document has not been referred anywhere in the evidence in the affidavit, or in the written statement. Written statement itself has said, that in the absence of the record available, the company has referred applicant for the assessment of his age in 1973. This shows that this document Annexure 'A' which is not referred anywhere becomes questionable document, how this document came in possession of Mr. Mahmood and why document was not produced by the respondent

13. The next question comes, how far the certificate of civil surgeon and the certificate of certifying surgeon has consistency. In the first place if, in 1973 the age is shown by certifying surgeon to be 50 years and the same has been examined by the civil surgeon in 1983 where his age is 55 years, there is a great difference. This certifying surgeon was appointed under the Factory Act. Civil surgeon is a Medical Officer of the Services Hospital to whom the respondent itself had referred the matter. In this context also, on one hand the Deputy Manager Administration has written to the certifying civil surgeon that the age of one worker was shown, as 49 and not agreeable and, therefore, the same man is referred to you for re‑examination. The same company has not agreed with the certificate of civil surgeon, Karachi where the letter of 5th March, 1984 states that Mr. Aftab's certificate has disclosed no reason, and not disagreed with his‑ predecessor's judgment: In the same letter addressed to Mahmood Khan they have further shown that Mr. Mahmood has concealed the previous fact of the certifying surgeon. Then I come to the Old Age Benefit form, where the date of birth of applicant, as shown, is silent, where also 53 is shown, as the age of Mr. Mahmood and the date of joining the scheme, is shown 76. In 1976 if Mr. Mahmood was 53 years, his age becomes more than 60 years in 1983. This document also does not show accuracy of month and the date. It is not filled even by applicant Mahmood which is an admitted position. If this document is compared with the appointment slip of the company, there is also disparity. In 1967 the age is shown as 46. In 1976 his age shown is 53. In fact it should be 54. It appears that appointment slip in original has been kept away because of inconsistency with the age entered in this form or the appointment slip is prepared document which also cannot be the case to be prepared by Mahmood to his disadvantage

14. It has been contended by the respondent's Advocate that certifying surgeon's assessment should be given evidentiary value because he is the certifying surgeon under the Factory Act. In the first place certifying surgeon is only to certify about the fitness in case of child to the extent of certain aspects of his functions under the Factory Act or in the case of adult who wishes to work in the factory, and not beyond.

15. Secondly if the certifying surgeon has made the assessment of age in 1973 as 50 years old, this document is not supported by the Expert's opinion that Mr. Mahmood had put thumb‑impression confirming his reference to the expert as accepting his age.

16. So with this date available in the absence of any parent Certificate or school certificate of birth, there appears discrepancy in the age in both the certificates of civil surgeon and the certifying surgeon or even in the form of old age benefit or even in the identity slip issued by the company which is neither produced by the respondents nor given any satisfactory explanation in the evidence. Further in para. 6 of the application, the applicant has also in Exh. A/5, said that there is also National Identity Card on the record of the company, why this document is not produced by Mr. Mahmood or by the respondent. This position has also remained under secrecy. If the Court examines applicant from the physical appearance, of which under the evidence, Court is competent to take general observations, besides the opinion of expert if it is available to corroborate. It also appears that Mr. Mahmood is also not a young man, looking, at the age of 55, below 60.

17. So in view of this matter the question of age is the most important factor, that what the respondent‑company should do in this regard, to retire him or to allow him to continue

18. It is contended by the applicant that if applicant is employed as a permanent worker, the normal rule is that company had to issue appointment order and maintain the record. The applicant has rightly contended that record of a permanent worker is to be maintained by the company if he was employed, but the respondent has failed to produce on the record instead showed unawareness that no such record was maintained.

19. In this context there is a reference of decision of Sind Labour Appellate Tribunal in case of Shabnam Silk Mills v. Khushi Muhammad 1979 P L C 129. It was held that "if a worker is ordered to retire on attaining the age of 60 years. If the management has neither proved the fixation of retirement age as 60 years or produced the evidence to the effect that worker has been rendered incapable of performing duties properly. There is no justification for the retirement". There is also a decision of the Indian High Court referred by Mr. Ali Amjad in case of Workmen of Kettlewell Bullen & Co. Ltd. v. Kettlewell Bullen a Co. Ltd. 1964 L C 684 the Court reproduced the observations of their Lordships of the Indian Supreme Court:

"Before the Tribunal the union pressed its contention that the rules of compulsory retirement that were framed in 1947 or 1951 did not apply to persons who were employed by the company at an earlier date when no such rule existed".

Their Lordship further held:

"Where rules of retirement are framed by the company it would have no application to its prior employees unless it is shown that such employees accepted the new rules as part of their conditions of service".

20. The admitted position is that the respondent‑company has not produced the retirement rules, at the time of his employment or his option to be bound by the rule , if prepared subsequently.

21. His Lordship in paragraph 8 of the decision which is the decision of our Appellate Tribunal held:

"There can be no dispute that no person is employed, for life and there ought to be some age of retirement but when the retirement age is not fixed, the person is entitled to remain in service as long as he is fit to perform his duty. No evidence has been led on behalf of the appellant that respondent is rendered incapable of performing of duty or work is suffering on account of his old age".

His Lordship in the end, dismissed the appeal and held as follows:

"By this time the respondent has reached to 61 years. It will be open to the appellant to get the respondent medically examined in order to determine his fitness to perform duty and take such action as may be deemed fit in accordance with law."

22. In view of this case‑law, the Court has reached this conclusion that if respondent is anxious to retire the person on attaining the age of 60 years with further opinion that he is not fit to perform duty on account of old age. In such situation where the particulars have not been made available regarding his accurate age by having the discrepancy in the age of applicant, by different functionaries. Applicant himself has left to the option that his identity card is registered under the Registration Act. Applicant Mr. Mahmood be called upon to apply for the copy of the identity card from the Registration Office or the respondent to assist him in getting the copy of that identity card and reach the sound decision which is the only alternative. He should also be examined by the Medical Surgeon to the choice of both the parties regarding his fitness on duty. With due regard to the fact that in view of the decision referred above if no retirement rules were fixed, the age of 60 years to be determined with further fact of his fitness. There are people who reach the age of 60 and yet capable to perform duty.

23. In the result the impugned order of retirement on the present evidence is not sustainable. Application allowed as prayed. Reference is made by Mr. Kamal Mansoor Alam to P L D 1977 Kar. 168, 1980 PLC 716, 1980 P L C 1131, 1980 P L C 224‑226, 1980 P L C 175 and 1980 PLC 269‑271.

A.E.

Application allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.