QAZI MUHAMMAD HUSSAIN SIDDIQUL MEMBER.- - Vide order dated 26.6.2003, the Appellant was dismissed from service. He preferred a departmental appeal on 10.7.2003, which was rejected vide order dated 2.8.2003; hence, he filed the present appeal before this Tribunal on 27.8.2001 praying to set-aside the impugned order of dismissal dated 26.6.2003 as well as rejection order dated 2.8.2002 and to reinstate him in service with all consequential benefits.
2. On 13.4.2005, while the appeal was pending adjudication in the Tribunal the learned Counsel for the Appellant filed a Misc, application intimating about the death of Appellant. He had annexed photocopy of death certificate, issued by Chandka Medial College Hospital, Larkana, according to which the Appellant expired on 6.2.2005, consequently the appeal stood abated.
3. We have carefully perused the record of the case and the case-law on the point of abetment of appeal due to death of Appellant.
4. On the above question of abatement of appeal due to the death of deceased, leave to appeal was granted, the learned Counsel for the Appellant argued that the right tc sue in cases, where monetary benefits are involved, being inheritable, on death of deceased Appellant, his legal heirs, were entitled to continue the proceedings launched by the deceased and the appeal would not abate due to the death of Appellant, in support of such contention, the learned counsel relied on a DB judgment of the apex Court reported in 1982 SC MR 157 (Muhammad Nawaz) represented by his
(heir) vs. (Ministry of Finance) and another DB judgment of the Sind High Court reported in NLR 1993 Service 65.
5. In the first judgment, referred to above, leave to appeal was granted to consider the above- mentioned question, in the second case of Sind High Court, being the case of compulsory retirement of the employee, challenged through writ petition, it was held that in the case of death of the employee during the pendency of writ petition, cause of action would survive in favour of the heirs of the deceased employee.
6. On the above question of abatement of the appeal due to the death of deceased, leave to appeal was also granted by a DB judgment of the Hon'ble Supreme Court reported in 1989 SCMR 268 Masooda Aziz and others vs. Registrar Cooperatives Society and others. However, in the Full Bench judgment of the Hon'ble Supreme Court reported in 1991 SGMR 1192 Muhammad Nawaz, Special Secretary; Division, through his Legal Heirs vs. Ministry of Finance, Federation of Pakistan through its Secretary, Islamabad, it was held in as under:- "5. We have heard Mr. Muhammad Bilal, Advocate for the appellants and Hafiz S.A. Rehman, Advocate for the respondent. The learned counsel for the appellants contended that the question involved in this case is one of refund of salary in connection with refixation of paying service, therefore, the proceedings for the recovery of the emoluments alleged to be recoverable, initiated by the predecessor-in- interest of the appellants did not abate. The Service Tribunal, therefore, was fully competent to adjudicate upon the matter. This contention has, however, no merit. A 'civil servant' has been defined in section 2(b) of the Civil Servants Act, 1973. A right of appeal under the Service Tribunals Act of 1973 has been given to a civil servant aggrieved by any final order whether original or appellate made by a departmental authority in respect of any of the terms and conditions of the his service. The appellants admittedly are the legal heirs of the deceased civil servant and there being no provision in the Service Tribunals Act of 1973 to provide any remedy to the successors-in- interest of a civil servant the learned Tribunal, in our view, was correct in holding that the appeal before it stood abated and the same is hereby maintained.
6. Before parting with the judgment, we may, however, add that the appellants are at liberty to approach a Civil Court of competent jurisdiction to seek their redress, if so advised.
7. The appeal thus fails and is hereby dismissed with no order as to costs."
7. On the question of abatement of appeal and the pursuance of the right of the deceased by his LRs, we have also a recent ruling of the Lahore High Court in Writ Petition No. 2197 of 2004 decided on 23rd July, 2004 reported in 2005 PLC (CS) 271 Mst. Ghazala Tariq vs. Federation of Pakistan through Secretary/Chairman, Railways Board and another, in the said case, the service of Mukhtar Ahmed Tariq, Special Ticket Examiner, Pakistan Railways, was terminated due to absence from duty. He filed an appeal before the Service Tribunal, but during the pendency of the appeal he expired. The appeal, therefore, abated. His widow filed an application before the Service Tribunal, which was disposed of by the following order:-- "This is ah application for early hearing of the appeal. The application is filed by widow of the appellant. We would have considered the application but we are unable to do so as-with the death of the appellant the appeal has abated in this Tribunal. The legal heirs of the deceased appellant may seek remedy in the appropriate Court. The appeal alongwith application is disposed of."
Mukhtar Ahmed Tariq's widow filed the above-mentioned Constitution petition before the Lahore High Court, which allowed the petition, observing as under:- "In the instant case, respondents have failed to establish, if any lawful inquiry was conducted by the respondents against the deceased, in which, he was associated and was provided with an opportunity to meet and contradict the evidence led against him, therefore,, the order dated 19.5.2002, seriously impinges upon the rule of natural justice and is void. Resultantly, the said order is declared to be passed without jurisdiction and lawful authority, with the consequences that Mukhtar Ahmed Tariq would be deemed into service since 19.5.2002 and the right of the petitioner inter alia shall be considered to be that of the legal heirs of the deceased employee of the Pakistan Railways and they shall accordingly be paid all the requisite dues. Disposed of."
8. In view of the authorities, mentioned above, we have no alternative but to hold that the appeal stands abated and it is disposed of accordingly with the observations that the LRs of the deceased Appellant would be at liberty to approach the Court of competent jurisdiction to seek their redress, if so advised. No order as to costs.
9. Copies of Judgment be sent to the parties under registered cover and to the relevant quarters, under Rule 21 of Service Tribunal (Procedure) Rules, 1974.