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Application No. 118 of 1985, decided on 24th November, 1985.

‑‑‑S. 25‑A‑‑Grievance petition‑‑Plea of premature retirement by employee‑‑Dispute relating to date of birth‑‑Disparity of date of birth recorded in service book, identity card and certificate of gazette‑ Effect‑‑Burden of proof of year of birth in absence of birth certificate, held, would be heavily upon employee to prove his date of birth‑‑Failure to prove same would render date of birth recorded in service book as relevant to be considered by' authority while deciding retirement.

‑‑‑S. 25‑A‑‑Grievance petition‑‑Dispute relating to age of employee‑ Original certificate of gazette, held, would not establish correct identity of employee, in absence of name of University/name of school, or signature of issuing authority‑‑Employer directed by Labour Court to make enquiry regarding correct age of employee‑‑During course of enquiry employer advised to extend age of employee which was within powers of such employer.

‑‑‑S. 25‑A‑‑Grievance petition‑‑Limitation of‑‑Cause of action for filing grievance petition against retirement would arise after availing of leave‑ Retirement of employee being legal or otherwise, same, held, would be mature for purpose of cause of action, from date after availing of leave.

1979 P L C 275 ref.

Riaz Hussain Baloch for Applicant.

Mr. Wasi Dad Khan, who was employed in Karachi Transport Corporation has challenged the order of retirement, dated 1,7‑1‑1985 that his retirement was premature as his date of birth as per Gazette notification from United Province India was 12th June, 1929 but he has been retired from 15‑9‑1926. He had joined as a Traffic Assistant in the respondent establishment since 29‑10‑1956

2. Mr. Wasi Dad Khan has also stated that the confusion has arisen in the date of ‑birth that in his Identity Card the date of birth is shown 15‑6‑1930. The certificate issued by the respondent on 16th March, 1985 shows the date of birth as 15‑9‑1926 and the Gazette notification shows the date of birth as 12th June, 1929.

3. Mr. Wasi Dad Khan has also stated that he filed affidavit before the First Class Magistrate where he has shown his date of birth as 12‑6‑1929 and, therefore, his date of birth be considered as the date for the purpose of retirement and any date of birth shown in the National Identity Card or the certificate issued by the respondent that his date of birth is 15‑9‑1926 be considered as the wrong date of birth.

4. Mr. Wasi Dad Khan has also stated that he is physically sound in health and there is no retirement age fixed by the corporation for the employees and, therefore, he can serve the department as long as his health permits him to continue. He has also stated that on 17‑1‑1985 his age has been shown 55 years and 7 months but if Karachi Transport Corporation looks into the matter he will attain the age on 17‑1‑1955 as 55 years.

5. Respondent has contended that the appointment of Mr. Wasi Dad Khan has shown the date of birth as 15‑9‑1926 and he was rightly retired on attaining the age of superannuation on the date of 17‑i‑1985, the date of issuing the order. If any mistake has occurred in writing the year 1984, it is due to the typing mistake.

Following are the points for determination:

(1) Whether Mr. Wasi Dad Khan was retired prematurely from the service of Karachi Transport Corporation and there is no age of retirement.

1. It has been contended by applicant's representative that there is no age of retirement in the Karachi Transport Corporation but if Regulation 19 of the Road Transport Corporation is referred as the rules followed by the Karachi Transport Corporation, the age of the retirement is 55 years which can be extended upto 60 years of age.

2. So far as the retirement Rules‑are concerned, there is no age limit shown in the I.R.O. of any employee to which the labour law is applicable and, therefore, there is no statutory definition of the age limit as the right secured and guaranteed to be the basis of the grievance. If the Rules are followed by K. T. C. under Regulation 19 even then the age of 55 years as said to be the age of retirement subject to the extension if granted by an appointing authority.

3. In this case, Mr. Wasi Dad Khan has neither applied for extension nor has satisfied the Court that he has not reached the age of retirement of 55 years, which otherwise if calculated comes to 58 years 2 months and 2 days from the date of his age entry in the service book that is 15‑9‑1926.

4. Mr. Wasi Dad Khan, of course, has produced the extract from the United Province Gazette of India that prior to his migration, he has received the schooling education in the United Province as a bona fide national and his date of birth is 12‑6‑1929. This Annexure 'B' is produced by him with no signature of the original authority except the seal of the Deputy Inspector School, Badayooni and the true copy is produced to show to the Court that this document is genuine document. He has also further referred to affidavit which he has sworn before the Magistrate showing that his date of birth is 12‑6‑1929. His national identity card shows his date of birth as 15‑6‑1930. His K. T. C. Identity Card also shows his date of birth as 1930. He has also made attempt to show that the documentary certificate issued showing his date of birth 15‑9‑1926 is not correct. The actual date of birth is 12‑6‑1929.

5. He has also further criticised the evidence of Haq Nawaz to show that he has not produced the control register to show that his date of birth is correctly mentioned. Haq Nawaz however, has filed affidavit also in the Court to show that there is no control register in K. T. C. Depot except of those registers which are produced. He has referred to his service book to show that his date of birth is shown as 15‑9‑1926 at the time when he was appointed in 1956. Mr. Haq Nawaz has also very strongly criticised the genuineness of the education certificate showing that it does not mention the name of University or School and has mentioned that he qualified in Sindhi language when applicant has no ‑ knowledge of same and even Hindi language. He has further shown to the Court that the original certificate on the record is not produced. In cross‑examination, he has also been put certain questions regarding the knowledge he possessed of the departmental section and the working of the department. He has also stated that he does not know, in what capacity applicant had come to this depot but he has worked as a duty clerk. The identity card which he has produced of the applicant Annexure 'C' is issued from the headquarter which shows that he was working as duty clerk. His date of birth as shown, according to him is as the year 1930. He has also been asked to refer to the register which he has explained that the register does not mention the year, the only date of appointment and the date of birth of employee. There also entry is not made in these registers 4‑A and 4‑B to show that he was shown as duty clerk.

6. Applicant has also examined one witness Mr. Zahid Ali who is Yard Master. He has stated that he had seen the control register and that he is not in a position to remember the name of the clerical staff in whose presence the register was seen. According to him the date of birth as shown is 12‑6‑1930.

7. The Court also refers certain extracts of the evidence of Mr. Wasi Dad Khan who has made certain admissions:‑

"He has stated that he has not produced the original certificate. He can read Sindhi language nor he can write. His identity card was issued in 1984. His date of birth as shown is 1930. The date of birth in his certificate is 12‑6‑1929. In that certificate of gazette there is no mention of the school name. In the certificate there is no mention of the University. The original certificate was misplaced. He has not stated in the affidavit of declaration before the Magistrate that certificate of United Province was misplaced."

8. The witness further refers and makes statements which Court has specifically pointed.

"When I joined service of K. T. C. I appeared for medical check up. I have shown my date of birth in K.T.C."

The Court has put a note with this remarks:

"The witness takes time to recollect his personal bio‑data from about the signature and then says that it is mine."

9. With this evidence of the record and certain admissions made by the applicant and also the documents examined by the Court namely the identity card, UP Gazette, certificate and the appointment order and the service book there are two versions. Mr. Wasi Dad Khan states that his real date of birth is 12‑6‑1929 and not the age as 15‑9‑1926.

10. In the first place the Court has seen the appointment order shown in his service book. His date of birth as shown is 15‑9‑1926. His appointment is made on 29‑10‑1956. The affidavit which he has sworn before the Court is 10th July, 1985 and the National Identity Card of which he has made a specific mention in his own affidavit of declaration, that date of birth was 15‑6‑1930 but it was wrongly shown. The same date of birth is shown in the K. T. C. card. In K. T. C. card it is shown that he was born in the year 1930.

10. Mr. Wasi Dad Khan has made much of it that his date of birth is 12‑6‑1929. The Court is surprised, to note that if the original certificate of the gazette was available with the applicant after he had migrated from India why he did not produce the gazette certificate before the appointing authority, in 1956. Even his explanation is taken to the convincing explanation that his original certificate was misplaced and he has produced the true copy and has taken this document to be the oldest document to have the sanctity attached, there are reasons for the rejection or non‑creditability of the documents, namely if the date of birth was 12‑6‑1929, it is not understood how the memory of Wasi Dad Khan failed when he was applying for his own National Identity Card where he has shown the year 1930 as the age of his birth. It was not the card of K. T. C. but the National Identity Card issued from the office of the Directorate or any branch of the Directorate to show his state of mind. There is also no indication when his certificate was misplaced and why this fact of misplacement was not mentioned before the Magistrate by disclosing the year and the date when he came to possess this knowledge of disappearance. Thirdly, the K.T.C. has criticised the creditability of the certificate that it does not show the signature of the concerned authority and also the seal is doubtful and there is no name of the university from which university he qualified or from which school he qualified. The burden of proof of the year of birth in the absence of the certificate from parents is very heavy on the applicant Wasi Dad Khan to show to the Court that his date of birth was 12‑6‑1929 and not 15‑6‑1930 or what is written in his service book is 15‑9‑1926.

11. Mr. Wasi Dad Khan may also be right in saying that the date of birth entry is not accurate with the Identity Card issued by the K. T. C. itself which has shown the year 1930. It is also not understood how the K. T. C. issued this card showing year 1930 when their own record of service book shows that his date of birth is 15‑9‑1926.

12. After examining this card the Court is forming this impression that even the record maintained by the K. T. C. officials of this applicant concerned does hot represent the correct particulars by showing two different documents namely the card showing the age of 1930 and the service book. But at the same time the burden is on the applicant Wasi Dad Khan to show to the Court that his date of birth was 12‑6‑1929, and where is the original. Why he showed his date of birth 15‑6‑1930. in the National Identity Card which was from his own memory and not dictated by any one else. .

13. While going through the contents of the arguments submitted in this Court, in the written form, the applicant's representative has assured the Court that he will produce the gazette in original from the library.

14. The Court is of the view that even if the gazette is produced, the Court is not satisfied about the correct identity of this man in certificate when there is no name of university or name of school or the signature of issuing authority. The Karachi Transport Corporation can write to the Counsulate‑General to send for his medical certificate from India in original by furnishing the particulars as to form opinion or the applicant be given time to get original from India by authority. The gazette produced at this stage, at least has some evidence for the applicant, on the point of age, till the Court finds out correct age.

15. Medical data regarding age in such circumstances will not be authentic certificate. The affidavit sworn, before the Magistrate regarding age cannot improve the correct position regarding the age.

16. In such circumstances if the age factor is doubtful for want of original certificate or the original gazette to show the name of the Institution and the school, he belonged to on the form of parentage and description, in' view of different dates of birth where applicant is changing from time to time in the National Identity Card or at the time of appointment, the Karachi Transport Corporation will give the time to the applicant to produce the original gazette or certificate by writing to the Institution to produce certificate of birth which is not difficult in the course of postal communication. Meanwhile if the copy is produced in whatever form or other, the applicant has some evidence which Court cannot overlook, and has discussed the reasons of its non‑acceptance. Accordingly he will furnish surety of the pay he will draw till the age is decided by the Karachi Transport Corporation. In the meanwhile if the Karachi Transport Corporation feels difficulty, it can extend the age which the authority is competent till the correct particulars are furnished and the certificate if tends out to be false, the Karachi Transport Corporation can take any action desireable in the interest of working of the administration.

17. Regarding limitation the Court has examined this aspect and found that his application is in time from the date 7‑7‑1985 because the cause of action arises after availing leave. Whether the retirement was legal or illegal, still it was mature for the purpose of the cause of action from 7‑7‑1985 as per their letter K.T.C. has‑also referred decision 1979 P L C 275, 277 which is of Labour Appellate Tribunal's decision.

Application is allowed to that extent.

A. A. Order accordingly.

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