SUI NORTHERN GAS PIPELINES LTD., LAHORE Versus PIR MUHAMMAD

ORDER

MAHMOOD AKHTER (SENIOR MEMBER).--‑‑ The appeal has come up for hearing under section 22‑B(4) of Industrial Relations Ordinance, 1969, in the absence of Mr. Mahmud Ahmad, Joi4t Secretary, Industries (Planning), who is not available.

2. The facts leading to this appeal against impugned order dated 18‑4‑1990 are that, respondent joined the service of the appellant Company in January 1965. He declared his date of birth at the time of joining the service as 1930 on the declaration of age/date of birth prescribed for that purpose. The company obtained his date of birth also from Pakistan Army‑‑his previous employer. The Army Certificate showed his age as 18 years on 24‑9‑1948. His date of birth was therefore entered as 24‑9‑1930, by the Company. His service record was accordingly rectified and that fact was communicated to him on 5‑1‑1984 in writing. He stayed reconciled to this fact till 21‑12‑1987 when he applied for change of date of birth on the basis of identity card dated 12‑5‑1987. The request was refused on 4‑4‑1988. He filed petition under section.22A(8)(g), IR0,.1969, alongwith an application under Regulation 32 of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 for a stay order. That application was not pressed and was therefore disposed of accordingly. His petition was dismissed for want of jurisdiction but was remanded on appeal to the said learned Member‑I. The respondent moved another application for stay which was granted on 18‑4‑1990 by the said learned Member.

3. In his order the learned Single Bench stated that the present respondent was elected as the President of the Union in the Company and that unions' elections were "due in May 1990 in which petitioner is going to election for the post of President of the Union. The respondent placed on record his birth certificate, school leaving certificate and national identity certificate which indicated that he was born on 28‑9‑1933. The learned Member observed that prima facie there is nothing to show that these documents were fabricated by the petitioner (present respondent). The petitioner (present respondent) remained President of the Union for sufficient long time and also intends to participate in the forthcoming election stated to be held in May, 1990. Prima facie he has an arguable case. Balance of convenience also leans in his favour and he is likely to suffer an irreparable loss if his application for interim relief is not allowed. The application is accepted and an interim order is made prohibiting the respondent (present appellant) to retire the petitioner on 28‑9‑1990 till the disposal of main petition------"

4. So far as the main consideration that the respondent had been the President of the Union for sufficiently long time and also intends to participate in the forthcoming election stated to be held in May, 1990 it is an admitted fact that he did not contest that election at all. However, to gloss over that fraud played upon the Court in going back over a solemn assurance given to the Court it was stated that if Peer Muhammad had contested the post of President, his rival candidate Abid Hussain Janjua was already giving wide publicity that Peer Muhammad would be retiring after 5 months in September, 1990 and it was having a very bad effect in the elections for the entire group of Peer Muhammad. Accordingly Peer Muhammad did not contest for the post of President but the election was fought in his name and his group was successful in the elections ...."

5. The stay application was moved on 4‑3‑1990. At that time as also in his application dated 5‑4‑1988 he held out before the Court that he was going to contest elections of the Union as President in the forthcoming election. It was on that solemn assurance to the Court that he was granted stay order which he violated and thus played fraud upon the Court.

6. As for the other ground which prevailed with the learned Member that there was nothing on record to show that Peer Muhammad had fabricated the birth certificate, the school leaving certificate and national identity certificate, learned Member ignored the fact that in the date of birth column in the national identity cards that date is written which is stated by the incumbent of that card. In the case of Muhammad Anwar Shah v. Adam Sugar Mills Ltd. 1988 PLC 663, the question of evidentiary value of national identity card had arisen before the Punjab Labour Appellate Tribunal. It was held that

"...the authorities which issued the identity cards usually do not make any enquiry about the correctness or otherwise of the date of birth or age given by the person concerned, therefore prime facie the identity cards have no sufficient evidentiary value so far as the age given therein is concerned.".

The Sindh Labour Appellate Tribunal in Akber Khan v. Karachi Transport Corporation 1988 PLC 135, held:

"Mr. Akbar Khan has not produced his' date of birth with correct particulars. His reliance on `the national identity card is no proof conclusive of the age, in which simply the dates of birth are shown by the holders of the cards for the purpose of identification and nothing beyond. Normally the best evidence of the age is the parent's certificate where he was born of the school certificate where he received the education or if there is no such entry, normally the date of entry in the job which he initially joined in the Government service or autonomous bodies. The medical certificate is also simply the opinion with always high fluctuation of the margin of which the Court has taken the judicial notice in number of cases."

Thus we do not find the entry in the national identity card of Peer Muhammad reliable, particularly because, 28‑4‑1973's National Identity Card No. 210‑29 070021 contained his date of birth as 1930 and subsequently, according to his own version, he changed it to 28‑9‑1933 in Identity Card No. 122‑87‑463404, dated 12‑5‑1987.

7. The school leaving certificate produced by the petitioner was from a private primary school. It gave his date of birth as 28th September, 1933. This certificate according to his own version before us, was never produced by him before the Army Authorities, where he gave his age 18 years on 24‑9‑1948. Learned Member, did not notice that by this withholding of certificate and falsely holding himself out as a man of 18 years before Army Authorities, the petitioner before him (and respondent before us) had in fact played a fraud upon the Pakistan Army in that he made wrongful gain (of drawing salary for three years) when he was not even eligible to be recruited. After having made that wrongful gain, he now wants to make another wrongful gain, by this time, relying upon the age recorded in that private primary school.

8. As for the dates of birth entered in private primary schools, it is not uncommon to find that parents often state a younger age of their boys‑‑ and also girls, than they actually possess at the time of their admission in schools to help the former in securing Government service, and the latter show themselves younger at their time of marriage. The Courts both in India and Pakistan have been taking judicial notice of this practice. Honourable Lahore High Court took note of this practice in the case of Muhammad Nawaz v. Collector, District Gujranwala PLD 1960 Lah. page 1123, while the Supreme Court of India in Brij Mohan Singh v. Priya Brat Narain Singh AIR (sic) Supreme Court 282 (V 52C 51) or AIR 1964 Patna 2, held as follows:

"In actual life it often happens that persons give false age of the boy at the time of his admission to school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The Court of fact cannot ignore this fact while assessing the value of the entry and it would not be improper for the Court to base any conclusion on the basis of the entry when it is, alleged that the entry was made upon false information supplied with the above motive."

Date of birth entered in a school register is not a reliable proof that such entry was made on father's admission. Such entry was held to be inadmissible in evidence in Muhammad Hussain v. Muhammad Nawaz alias Dilawar Khan and another PLD 1969 Election Tribunal 111. In this case regarding proof of age of a candidate to the National Assembly, the date of birth was intentionally stated incorrectly in the application for admission into school. It was held that much reliance cannot be placed on such a piece of evidence. Learned Tribunal relied on the case of Raja Janki Nath Roy and others v. Jyotish Chandra Acharya Chowdhry and others AIR 1941 Cal. 41 in which it was held that the statement in a school register about the age of a person in the absence of evidence to show on what materials the entry in the register about the age of that person was made, has not much evidentiary value. Reference may also be made to Asa Nand v. Gian Chand AIR 1936 Lahore 598 in which it was held that entries in a school register are of little value as evidence of age particularly when the school is a private primary school. This is almost the settled law. The following judgments of various High Courts of India and Pakistan could also be cited. In AIR 1959 Kerala 12 Gopalan v. Kannan a Division Bench held that‑‑

"Entries in admission registers kept in private schools cannot be considered as entries made by a public servant in the discharge of his official duties nor can it be said that these‑registers are kept in the performance of a duty specially enjoined by the law of the country within the meaning of section 35 of Evidence Act."

Similarly, in a Burmese Authority AIR 1940 Rang. 191 Hoak Saing v. Ma E Hla and others, it was held that an employee in a school other than a Government or a State School is not a public servant and any entry in its register made by him is not one made in a public or official register by "a public servant" in the discharge of his duty. Hence the entries in registers of schools other than Government schools are not admissible in evidence under section 35 of the Evidence Act. In Tata Iron and Steel Co. Ltd:, Jamshedpur v. Abdul Wahab AIR 1966 Patna 458 (V 53 C 108) the facts were that Abdul Wahab a worker in Tata. Iron and Steel Co. Ltd. was compelled to retire from service on the ground of attaining the age of 60 years. The year of his birth was entered in the Staff Card on the statements made by the plaintiff himself. The plaintiff alleged that he was born much later and produced a document relating to the entry in the school admission register. Both the documents were found to be genuine. However, no one had been examined to prove that the plaintiff was actually born on that date nor had any one been examined to prove that he made the statement before the school authorities at the time of plaintiffs admission and that the statement made by him was correct. It was held that the mere entry in the school admission register could not be taken to be conclusive to prove the allegation that he was born on that date and hence the lower Court committed an error of law in preferring the entry in the school admission register to that of staff card.

9. The respondent also, apparently, realising the lacuna in his defence came forward and filed an affidavit of his mother on 1‑10‑1990 stating that

This case it may be recalled dates back to 1988. She did not submit her affidavit concerning the date of birth of respondent at that time. She did not submit it in 1948 when her son stated his age before Army Authorities as 18 when admittedly he was 15. She did not correct either her son or the Karachi Gas Company where he gave his year of birth as 1930. She did not correct the year of birth of his son as 1933 when his son himself stated it as 1930 before the appellant at the time of his joining service, nor did she correct her son at the time of giving his year of birth as 1930 to the National Registration Department who issued the National Identity Card No. 210‑29‑070021, dated 28‑4‑1973. Her affidavit came after the learned counsel for the appellants had taken the plea that the school certificate, the birth certificate and the identity card ‑‑ all afforded secondary evidence, and that the mother's evidence was the primary evidence in the matter concerning the birth of her child. The affidavit is thus nothing but an afterthought, a device only to plug the gaping loophole. The statement in her affidavit is belied by her own son,

(a) in 1948, before Army Authorities at the time of recruitment,

(b) before the Karachi Gas Company at the time of his recruitment,

(c) before the Appellant Company in 1965,

(d) before the Registration Authorities on 28‑4‑1973, and

(e) before the E.O.B.I. Authorities from whom he received Old Age Pension on that count till at least May, 1989.

This the respondent Peer Muhammad did and these benefits has received by stating his year/date of birth as of 1930.

10. The statement in her affidavit is unreliable because it is not yet tested through cross‑examination. Her affidavit cannot even otherwise be accepted in appeal as it amounts to presenting additional evidence, which we are not inclined to add to the appeal file at this (appeal) stage, as the evidence produced is merely submitted to plug the loophole and to supply the lacuna.

11. Learned counsel for the respondent states that the respondent got his age corrected from the National Registration Authorities in 1987 and got a new Identity Card issued bearing No. 122‑87‑463404 where he gave his date of birth as 28‑9‑1933.

12. He further states that he filed the petition (not appeal) in NIRC on 4‑4‑1988. He states that ‑‑

........if the age of Peer Muhammad is taken as 1930, then according to the rules of the Employees Old‑age Benefit Institution he was entitled to receive pension after 55 years i.e. in 1985. At this stage it is submitted with all the emphasis at the command of the petitioner Peer Muhammad did not receive his pension in 1985 or before the filing of the petition. He, however, received his pension on 29‑8‑1988 under proper stamp and under intimation to EOBI, copy of which is enclosed for ready reference ..enclosed.

13. All this rhetoric, this fine play of words, however, fall to the ground when one sees that the pension received was for period from October, 1985 to June. 1986 @ Rs.135 p.m. and from July 1986 to December 1988 @ Rs306 p.m. This total amount of Rs.43,601 was collected by him from Habib Bank Limited WAPDA, Lahore. As to his receiving the amount of pension from October 1985 to September, 1988 under protest, nothing could be mort 'preposterous‑‑if he knew that the pension amount was not due and he bat simply no business to receive it. After all no one forced him to receive it. Thus by his own action, he accepted his age to be above 55 in October, 1985. The defence that he received the said pension on 29‑8‑1988, is of no avail. He may receive his dues at any time. It proves nothing. What is material here is, when does he accept his year of birth to be. By his own showing before the EOBI statutory institution where he was bound to give the correct date of birth he only gave his year of birth as 1930 but also derived monetary benefit on that account.

14. As for his birth certificate, it shows that Chowkidar Mizuddin reported on 2‑10‑1933 that a son of Muhammad Gulab was born on 28‑9‑1933. This copy of birth certificate was prepared by Sanitation Moharrir, Abbottabad on 29‑4‑1987 and attested by the District Health Officer, Abbottabad as. The photo copy of the attested copy, however, also does not show who recorded the information on 28‑9‑1933, who authenticated, it, whether it was drawn/made or issued by a public servant in performance his official duties or not. Since it does not show these material particulars as to under what law was that entry made, its probative value is suspicious. Even a casual perusal of this "certificate" would lay bare the inherent weakness of this "certificate". This "certificate" does not also show the birth marks or physical identification marks of the child (son) who was born. To connect it to Peer Muhammad it shows the name of the father of the son who was born as Muhammad Gulab. Now Peer Muhammad states that the name of his father was Gulab Khan. His mother Mst. Fazal Jan has also stated the name of her husband to be Gulab Khan. In the entire record, and throughout these entire proceedings Peer Muhammad has always stated the name of his father to be Gulab Khan. Never has he stated the name of his father to be Muhammad Gulab. This may be the certificate of birth of some other person who was son of Muhammad Gulab, but not of Peer Muhammad son of Gulab Khan.

15. That entry in the birth certificate must be connected with the person whose date of birth is to be proved is vital in a case of this nature. In Paryani Bai v. Bajirao AIR 1963 Bombay 25 (V 50 C 7) Mr. Abhyanker, J.) held:

" It is no doubt true that the entry regarding the birth maintained in Kotwari book like birth register is receivable in evidence under section 35 of the Indian Evidence Act. But it is wrong to assume that mere filing of a copy of an entry in the birth register or the Kotwari book proves ipso facto that the entry relates to or proves the birth of the person concerned; evidence has to be introduced to connect that entry with the person whose date of birth has to be established .

16. Similarly in Biseswar Misra v. The King AIR (36) 1940 Orissa 22 (C.N.5) a Divisional Bench of the Orissa High Court held‑‑

"----The birth certificate Exh. Z has been produced and the entry Exh. Z A has been marked therein and is spoken to by P.W. 14, but it is urged that this birth certificate is not evidence of the age of the girl since there is no evidence connecting the entry therein with this particular girl. This no doubt is so. The birth certificate does not prove itself and is no proof of age of any particular person unless the person connected with that entry either by making the entry or giving information comes forward and speaks to the entry and connects the entry with the individual concerned------"

17. Although in this case even the name of the son was not given on the copy of "birth certificate" yet in the case of Hemanta Kumar Das v. Alliantz Und Stuttgarter Life Insurance Co. Ltd. AIR 1938 Cal. page ‑120, even when the name of the person (daughter) appeared in the register of births Lord Williams, J. demanded evidence of identification. His Lordship held:

"Three documents were put in evidence on behalf of the defendants. (a) (b) A certified extract from the register of births of Ward No. 6, showing that a daughter was born to one Noot Behari Das of 92/2/1 Baranoshi Ghosh Street on 24th March, 1892. The informant was one Noot Behari `Das. The extracts were produced by a clerk in the Health Department of the Corporation of Calcutta who had no personal knowledge about the entries and could not vouch for their correctness. No attempt was made to identify the person named therein. It was suggested on behalf of the defendants that these entries refer to the assured and his daughter and his wife and show that he could not have been of the age stated by him. In my opinion they cannot be accepted without evidence of identification and are not sufficient in law, without such evidence of identification to establish the defendants' case. As was held in (1718) I.E.R. 1501 (Draycott v. Talbot), entries of the names of persons in a register of births or deaths or marriages cannot be positive evidence of the birth, death or marriage of such persons unless their identity is fully proved; see also Woodroffe's Law of Evidence Edn. 9 at page 394------"

18. In this case the birth certificate has not been connected with Peer Muhammad son of Gulab Khan. It has therefore, no probative force.

19. We are of the opinion that the only fair conclusion in this case could be drawn on the basis of date of birth given by Peer Muhammad when he joined the service of Pakistan Army, the Karachi Gas Company, the appellant company, and the one on the basis of which he drew the pension from EOBI and the salary from his above‑stated three employers. Learned Punjab Labour Appellate Tribunal in Executive Engineer. CBDC Lahore Division and 2 others v. Karam Din 1988 PLC 494 observed that

" Unless contrary is proved the presumption is that in the service record the date of birth is given according to the information furnished by the employee concerned, therefore without any strong evidence the said date cannot be ignored."

20. This we regard to be a fair statement of legal position to which we subscribe. Respondent has not been able to make out a prima facie case, we therefore accept the appeal and set aside the impugned order dated 18‑4‑1990.

H.B.T./184/NIRC Appeal accepted.