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Constitutional Petition No. D‑1;3 of 1983, decided on 14th April, 1983.

‑‑‑Art. 199 Constitutional petition----Age---Petitioner question of fact A disputed question of fact, requiring evidence to establish age car correct date of birth and involving investigation, evidence oral or documentary, held, could not be allowed to be agitated, in a constitutional petition.

S.25‑A‑‑Constitution of Pakistan (1973), Art 199‑‑Constitutional petition‑‑Retirement of worker‑‑Age‑‑Petitioner worker challenging his retirement ordered by respondent employer on basis of age in service record‑‑Worker making varying and contradictory statement, about his age which became a disputed question of fact requiring evidence to establish correct date of birth‑‑Petition suffering from lashes and petitioner being an employee of Company, held, was debarred from seeking redress for re‑instatement by invoking constitutional jurisdiction of High Court.

1970 S C M R 40; 1971 S C M R 568 and P L D 1974 S C 146 rel.

Safdar Hussain for Petitioner.

Date of hearing: 13th April, 1983

SALEEM AKHTAR, J.‑

‑The petitioner has challenged the order passed by the respondents retiring him from service.

Briefly the facts are that the petitioner joined respondent No.1 in the year 1964 as an Officer in Grade‑3. The petitioner had filed an Employment Form in which he had stated his date of birth as 1‑3‑1921 instead of 1‑3‑1928. When the petitioner realised this mistake he requested the respondent No.1 to correct it. It is stated that in the office of Personal Division and the record of House Building Cell, the date of birth was corrected as 1‑3‑1928 and in the respondent's Confidential Report, the date of birth is shown as 1‑3‑1928. The respondents issued a letter, dated 14‑9‑1981 intimating the petitioner that as he had attained the age of 60 years he stood retired from service with immediate effect. The petitioner made representation, dated 21st and 28th September, 1981 that as his date of birth is 1‑3‑1928 the order of retirement may be recalled but his request was not accepted. The petitioner had submitted a copy of Matriculation Certificate, Certificate from the Patna Municipality and Transfer Certificate, but the respondents did not accede to his request mainly because the photo copies of the certificates produced by him were not acceptable.

Comments were called from the respondents who have stated that the petitioner had filed an application, dated 3‑7‑1964 for employment stating that he passed Matriculation Examination in 1939 from Calcutta University. He has served Indian Army during war for six years as incharge of different kinds of stores, and also worked for about 17 years in the Criminal and Civil Courts and Treasury in various capacities. A copy of this application has been annexed with the comments and it has been stated that considering the experience, the petitioner's date of birth could not be in the year 1928. It seems that the petitioner has made varying statements about his age. In the application, photo copy of which has been submitted by the respondent, it has been stated, that he passed Matriculation Examination in 1939, but date of birth has not been mentioned there. In the photo copy of Matriculation Certificate no date of birth is given, but his age has been given as 18 years two months in 1946. His statement that he passed Matriculation Examination in 1939 is in contradiction with the certificate according to which he passed that examination in 1946. However, one thing is common that at' the time of passing the Matriculation Examination he was 18 years old. The petitioner has not produced the original Matriculation Certificate. The facts stated above clearly show that the petitioner's statement about his age is contradicted by his own applications and statements. It, therefore, becomes a disputed question of fact requiring evidence to establish the age or the correct date of birth. Such disputed questions of fact which require investigation, evidence oral and documentary cannot be allowed to be agitated in a Constitution Petition.

The other aspect of the case is that the impugned order was passed on 14‑9‑1981, thereafter, the petitioner seems to have pursued the matter with the respondents whose last letter submitted by the petitioner is, dated 13‑2‑1982. Since then it seems that the petitioner has not taken any step, and therefore, the petition filed on 7‑2‑1983, in the facts and circumstances of the present case, is belated. Further the petitioner being an employee of a Company cannot seek redress for re‑instatement by invoking Constitutional Jurisdiction of the High Court,

Reference can be made to 1970 S C M R 40, 1971 S CM R 568 and P L D 1974 S C 146.

For these reasons the petition is dismissed in limine.

M.Y.M. M-103/K

Petition dismissed.

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