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Application No. 239 of 1985, decided on 25th January, 1986.

--‑S. 25‑A‑‑Grievance notice‑‑Validity of‑‑Requirements‑‑Cause of action to submit grievance notice against retirement, held would accrue to workman on day of retirement after close of working hours‑‑Grievance notice served on day of retirement could not be treated as valid and proper notice if same could be shown to have been received by employer before close of working hours‑‑There being no evidence on record to show that workman posted such notice before close of working hours or same was received by employer before close of working hours on workman's retirement day, grievance notice submitted by workman would be deemed to be valid and proper in circumstances.

‑‑‑S. 25.‑A‑‑Grievance petition‑‑Retirement from service‑-Computation of age of retirement‑‑Workman, while joining establishment giving a certain age in employment record and signing same‑‑Subsequently in identity card and in medical book/card entry of different age was made at instance of workman‑‑Age of employee, held, would be deemed to be that contained in employment card.

‑‑‑S. 25‑A‑‑Grievance petition‑‑Retirement of workman from service‑ Fixation of retirement age subsequent to employee's appointment‑ Effect‑‑Employer establishment having been nationalized subsequent to employee's joining same, Board of Industrial Management constituted to lay down policies, held, would be empowered to fix age of retirement of employees, even if-‑there was no age of retirement fixed by such establishment prior to nationalization‑‑Retirement from service could not be deemed mala fide in circumstances.

1979 P L C 129; 1964 L L C 684 and 1981 P L C 660ref.

Ali Amjad for Applicant S.M. Yaqoob for Respondents.

This petition under section 25‑A of the Industrial Relations Ordinance, 1969 has been filed by the applicant against the respondent's establishment praying therein that he be re‑instated in the service of the respondents with full back benefits.

The facts of the case as stated by the applicant in his above petition briefly are that he was a permanent workman in the respondent': establishment since 1972 and after his appointment he was medically examined and a medical book was issued by the respondents on 9‑10‑1976 which shows that his age was forty‑five years. He further submitted that the National Identity Card issued to him shows his date of birth as 1931 but he was surprised to receive a letter, dated 23‑‑8‑1984 from the respondents wherein they informed him that according to record of the respondents his date of birth was 1917 and he would be retired on attaining the age of sixty years on 23‑9‑1984. He further submitted that he protested against his retirement as his date of birth was wrongly mentioned but the respondents did not consider the same and subsequently on 23‑9‑1984 he submitted a grievance notice asking the respondents to rescind the order of retirement but the respondents rejected his request vide their letter, dated 4‑10‑1984. He further submitted that the order of termination by way of retirement was mala fide and unlawful as there is no age of retirement in the respondents' establishment and also he did not attain the age of sixty years. Hence the above petition.

The respondents filed their reply statement wherein they objected to the maintainability of petition under section 25‑A of the Industrial Relations Ordinance, 1969 on the ground that no proper grievance notice was submitted by the applicant and, therefore, the grievance petition was not maintainable. On facts they admitted the employment of the applicant since 1972. They further submitted that at the time of his appointment in March, 1972, he gave his necessary personal particulars which were filled in his record and the same was signed by him and the applicant had declared his age to be about fifty‑five years. They further submitted that there was no retirement age in their establishment but on the instructions of Board of Industrial Management it introduced retirement age of sixty years for the workers vide its circular, dated 9‑10‑1974 which was also incorporated in the circular and also in subsequent settlements with the Collective Bargaining Agent Unions. They further submitted that at the time of his appointment in 1972 there was no retirement age and the applicant disclosed his correct age as fifty‑five years but when a retirement age was fixed in 1974, the applicant with a view to reduce his age got his National Identity Card in 1976 showing his age to be less and also obtained medical book in 1976 in which also he declared his age less than his true age. They further submitted that neither the National Identity Card nor the medical book could be used as proof of age and the true age of the applicant was to be determined from the one disclosed by him at the time of filling his employment record. They denied that the applicant was retired from service illegally or unlawfully and submitted that the order of retirement was in accordance with the policy of the respondents and further submitted that the grievance notice submitted by the applicant was premature and did not amount to proper grievance notice as contemplated under section 25‑A I.R.O. inasmuch as no cause of grievance had arisen to the applicant when he submitted the grievance notice. They prayed that the petition under section 25 A of the Industrial Relations Ordinance 1969 be dismissed.

The applicant examined himself in support of his case and filed his affidavit‑in‑evidence wherein the facts narrated by him in his petition under section 25‑A I.R.O. were reproduced. He was duly cross‑examined by the learned Advocate for the respondents and during the course of his cross‑examination produced certain documents as Exh. A/1 to Exh. A/9. On behalf of the respondents Muhammad Ali Siddiqui, Manager Administration and Personnel filed his affidavit‑in‑evidence and he was duly cross‑examined by the learned Advocate for the applicant. During the course of his cross‑examination he produced two documents in evidence as Exhs.4‑A and 4‑B. The parties did not adduce any other evidence on their behalf.

Written arguments were filed on behalf of both the parties. I have perused the written arguments as well as the evidence on record.

With regard to the legal objection regarding the maintainability of the petition under section 25‑A, I.R.O. It is to be seen that the applicant was to retire on 23‑9‑1984 in the afternoon. Thus, the cause of action of the applicant would have accrued after the close of working hours on 23‑9‑1984. Whereas, admittedly he submitted his grievance notice to the respondents on 23‑9‑1984 This grievance notice cannot be treated as a valid and proper grievance notice if it can be shown that it was received by the respondents before the close of working A hours on 23‑9‑1984 but if the same was posted and received by the respondents after the closure of working hours on 23‑9‑1984 then the same would be deemed as proper and valid grievance notice. There is no evidence on record to show that the applicant pasted the grievance notice before the close of working house on 23‑9‑1984 or that the same was received by the respondents before the close of working hours on 23‑9‑1984. In the circumstances, the grievance notice will be deemed to be valid and proper in accordance with the provisions of Industrial Relations Ordinance, 1969.

The next question is with regard to the age of the applicant. The applicant in his cross‑examination admitted that at the time of his appointment in 1972 he had signed his personal record, a photostat copy of which he produced as Exh. A/2. According to the evidence adduced by the respondents, the contents of Exh.A‑2 were read over and explained to the applicant before he signed the same as per cross examination of respondent's witness Muhammad Ali Siddiqui, who stated that the applicant had signed Exh.A‑2 in his presence. In view of the evidence the contention that the applicant had no knowledge as to what had been written in Exh.A/2 and that the same cannot be used against him adversely has no force and in the circumstances of the same the age of the applicant will be deemed to be the one contained in his employment record Exh.A‑2. The applicant has also produced a photostat copy of medical certificate issued by Medical Officer on 27‑3‑1972 after his appointment wherein also his age has been shown as about fifty‑five years. The National Identity Card and the medical book/card issued to the applicant in the year 1976 wherein his age has been shown to be forty‑five years cannot be used to contradict the age disclosed by the applicant at the time of filling up his employment record.

As regards the contention that there was no age of retirement in the respondents' establishment at the time when the applicant joined their service and that the same could not be fixed subsequently with retrospective effect it is to be observed that the respondents' establishment is nationalised and taken over by the Government in accordance with nationalisation Order 1972 and a Board known as Board of Industrial Management was constituted which was empowered to lay down policies and to take such decisions in respect of the employees and other affairs of the taken over industries as deems fit and in exercise of this power the Board of Industrial Management decided to fix the age of retirement of the workers as sixty years It is also pertinent to note that apart from the fact that a circular was affixed on the Notice Board of the respondents, the factum of retirement has also been mentioned in the settlements, dated 3‑8‑1974 and 17‑9‑1986, therefore, the contention that the decision to retire of workers on attaining the age of sixty years was taken back by the workers and the C.B.A. union has no force and it was with the knowledge of C.B.A. union that the retirement age has been fixed in the respondent's establishment in respect of the workers. In this respect the learned Advocate for the respondents had referred me to two cases reported in 1979 P L C 129 and 1964 L L C 684. The second is a judgment of the Supreme Court of India and is not binding on this Court. As regards the judgment reported in 1974 P L C 129, the order of retirement was set aside as the same was found to suffer from victimisation. The learned Advocate for the respondents referred me to the case reported in 1981 P L C 660. This is a case arising out of retirement of a worker from the respondents' establishment on account of the circular, dated 9‑10‑1974, which is also the subject‑matter of this case and it was held therein that there was no bar on the respondents from fixing the age of retirement for the workers. In view of the above the applicant has failed to make out either that the respondents had not taken into consideration his correct age or that they had power to retire him on attaining the age of sixty years inasmuch as at the time of his appointment there was no retirement age in respect of workers and or that the order of his retirement from service was male fide or on account of victamisation. In the circumstances the order of retirement is valid, proper and no exception is taken to it.

Accordingly, I dismiss the petition under section 25‑A of the Industrial Relations Ordinance, 1969.

A.A.

Petition dismissed.

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